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SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, CJ Mr. Justice Ijaz ul Ahsan CIVIL APPEAL NO.10 OF 2021 [Against the judgment dated 11.06.2019, passed by the Federal Service Tribunal, Islamabad in Appeal No.3343(R)CS/2017 with MPs] Senior General Manager/CEO, Pakistan Railways Headquarters, Lahore and others. …Appellant(s) Versus Abdul Rauf Shamoon. …Respondent(s) For the Appellant(s) : Mr. Jawad Mehmood Pasha, ASC Naveed Mubashar Ch. D.S. Multan For the Respondent(s) : Mr. Zubair Hussain Jarral, ASC Raja Abdul Ghafoor, AOR Date of Hearing : 19.04.2021 O R D E R GULZAR AHMED, CJ.- The respondent was employed as an Engine Driver in Pakistan Railways. He was issued charge- sheet and statement of allegations dated 25.10.2016. He submitted his reply dated 30.10.2016. Enquiry Committee was constituted, which conducted the regular enquiry and ultimately gave finding that the respondent was guilty of commission of offence and recommended awarding of major punishment to the respondent. The respondent was dismissed from service vide order dated 15.04.2017. He filed departmental appeal, which came to be regretted vide order dated 05.07.2017. The respondent filed CA.10 of 2021 - 2 - service appeal in the Federal Service Tribunal, Islamabad (the Tribunal). The service appeal was heard and vide impugned judgment dated 11.06.2019, the same was partly allowed by converting penalty of dismissal from service into that of compulsory retirement from the date of his dismissal. 2. Leave to appeal was granted on 08.01.2021, relevant portion of which is as follows: - “The learned counsel for the petitioners contends that the train being driven by the respondent collided with a stationary goods train and tremendous loss of Rs.120,000,000/- (Rupees twelve crore) on that account was caused to the Pakistan Railways and even the operation of railways on the line was gravely effected. During this incident, four persons also lost their lives. Further contends that such collusion was on account of respondent’s violating the red signal in that he was required to stop the train when there was a red signal but instead he continued driving the train and ultimately collided with the stationary/goods train.” 3. We have heard the learned counsel for the parties and have also gone through the record of the case. 4. Learned counsel for the appellant has contended that on account of respondent’s misconduct the accident had taken place and in this regard in the preliminary enquiry so also in the regular enquiry the respondent was found responsible for the said accident and pursuant to the recommendation of the regular enquiry committee, he was imposed penalty and there was no CA.10 of 2021 - 3 - occasion for the Tribunal to have interfered with reducing the penalty from dismissal to that of compulsory retirement. 5. On the other hand, learned counsel for the respondent has supported the impugned judgment and contended that respondent has denied the charges. He has further contended that it was a case of contributory negligence as other employees were also proceeded in the same incident, who were awarded minor penalties. The learned counsel relied upon the case of Jan Muhammad vs. The General Manager, Karachi Telecomunication Region, Karachi and another (1993 SCMR 1440). 6. The Tribunal in the impugned judgment has noted that collusion of trains has taken place and the respondent was admittedly a driver of the train, which collided with the stationary Goods Train. The Tribunal found that the respondent was bound to follow the signals and while nothing the fact that the signal man has also been punished concluded that there was a fault in the entire system and the case being of a contributory negligence, the respondent cannot be exonerated from his negligent act, at the same time interfered with the quantum of penalty imposed upon the respondent considering his 36 years’ service. 7. The charge against the respondent, as contained in the statement of allegations, was that while working on 14 Down (Awan Express) Train on 15.09.2016, he was responsible for collusion of 14 Down in the rear of stationary Down ZBKC Special Goods Train at KM 61/2-3 between SSH-SJB stations on Multan Cantonment-Lodhran Double Line. He was further charged of being responsible in running the Train at excessive speed after CA.10 of 2021 - 4 - passing LXD-4 signal at danger. He did not even apply emergency brakes resulting in catastrophic accident. He was further charged that after stopping at LXD-4, which signal was at danger, he was required to proceed further upto the next auto signal with a cautious speed. He was further charged that of failure to have good lookout and to control his Train. He was further charged that he violated Rules 6 (a) & (b), 122, 259 (b) and 260 of the General and Subsidiary Rules. The respondent has submitted his reply dated 30.10.2016, in which he has not denied the allegations made against him in the statement of allegation but gave his own version in the following manner:- “As far as GR-259(b) is concerned the train stopped at LXD-4 gate signal and afterward the LXD-4 gate signal change her aspect and train left for the next block section ahead. Is this action for stopping the train at LXD-4 signal being red not sufficient to declare our vigilancy and good outlook? So these allegations are not attributable toward the undersigned as far as the question of accelerating train speed is concerned no hard and fast orders were issued from time to time in regard the LXD/LXU signals because they are not falling under the definition of an automatic signal. As far as the violation of GR-6 (a) & (b), it is pointed out that I observed the LXD-4 signal in danger position and stopped my train at LXD-4 signal, after availing two minutes stoppage I start my train on hand signal of the gate man. No sooner my train move LXD-4 signal changed her aspect to green, so allegation of violation of GR-6 (a) & (b) does not arise. CA.10 of 2021 - 5 - As concerned to application of emergency brakes it is pointed out that the tail lamp of ZBKC was not burning and the range of head light of ZCU locomotives is 180 to 200 metres and 9 seconds will take to cover this distance at the speed of 80 KMPH. Whereas 2 to 3 second will take for mentally preparation and the brakes of ZCU locomotives take place in 3 to 5 seconds, remaining 4 seconds are not sufficient to stop the train. The burning spots will only appear when the train braking power will be extra ordinary tight otherwise no such sign and symptom will be appear. This is an unexpected incident and everything is being assumed.” 8. It is noted that LXD-4 signal was showing red light that is danger position and respondent seems to have stopped the train at the said signal. He stopped the train for only two minutes and then started the train at hand signal of a gate man. Learned counsel for the respondent was asked to show as to who was the gate man who gave the hand signal, he stated that such gate man has not been examined in the enquiry. We may note that respondent himself having taken defence that he has started the train on hand signal of a gate man, it was incumbent upon the respondent to have positively proved this very aspect of his defence but the respondent did not produce the gate man, who is said to have given the hand signal for starting the train. 9. Further, the respondent has stated that no sooner the train moved, LXD-4 signal changed her aspect to green. Again the learned counsel for the respondent was asked to show what is the evidence on the record, which could establish that when the train CA.10 of 2021 - 6 - was moved by the respondent, the signal became green. Learned counsel for the respondent replied that there is no evidence to substantiate this defence of the respondent. 10. We may note that the train, which was being driven by the respondent, met with a catastrophic accident causing substantial loss to the property of Pakistan Railways so also the loss of human lives and the respondent in his reply has merely taken an evasive stand, rather on its close reading appears to have admitted that he has moved the train while signal was red in the danger position. 11. The factum of two defences taken by the respondent of hand signal of a gate man and signal turning to green having not been established, it becomes clear that the respondent violated the red danger signal. Further, the respondent has accelerated the train to the speed of 80 kilometres per hour and that he did not apply emergency brakes, these charges have not been denied by the respondent. The Tribunal in the impugned judgment has not considered these very important aspects of the matter, which the respondent has admitted in his reply to the charge-sheet. 12. As noted in the leave granting order the accident has caused direct monetary loss of Rs.120,000,000/- (one hundred and twenty million) to the Pakistan Railways and it also took lives of four innocent persons and looking at the conduct of the respondent, there was no ground on the basis of which the Tribunal could have interfered with the imposition of penalty of dismissal imposed upon the respondent. No ground whatsoever were available to the Tribunal for doing so. The judgment relied CA.10 of 2021 - 7 - upon by the learned counsel for the respondent deals with the procedure of holding of an enquiry, to which there is no cavil, but here the case is one where the respondent in his reply to the charge-sheet has admitted the facts that he has stopped the train on the red signal for two minutes and then moved the train when the signal was red and accelerated it to a speed, where it could not be stopped by him nor did he apply the brakes. The Tribunal has also found the respondent responsible for such accident and has not exonerated him from the same but converted the penalty from dismissal to compulsory retirement. 13. In view of the above, we allow the appeal and restore the order of imposition of penalty of dismissal from service upon the respondent. 14. Above are the reasons of our short order of even date. CHIEF JUSTICE Bench-I Islamabad 19.04.2021 ‘APPROVED FOR REPORTING’ Rabbani/* JUDGE

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{'id': 'C.A.10_2021.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE GULZAR AHMED MR. JUSTICE DOST MUHAMMAD KHAN MR. JUSTICE TARIQ PARVEZ Civil Appeal Nos.1109 of 2013 to 1111 of 2013 and Civil Appeal Nos.1424 of 2014 to 1428 of 2014 Nematullah (in C.A.1109/2013) Najeebullah (in C.A.1110/2013) Faridullah Khan (in C.A.1111/2013) Miss Sherin (in C.A.1424/2014) Miss Zar Afshan (in C.A.1425/2014) Johar Shah & others (in C.A.1426/2014) Miss Asfa Gul (in C.A.1427/2014) Matiullah (in C.A.1428/2014) … Appellants Versus Chairman Govt. Body WWB/Secy. To Govt. of KPK Labour Dept. & others (in C.As.1109/2013 and 1111/2013) Workers Welfare Fund thr. Chairman, Islamabad & others (in C.As.1424/2014 to 1428/2014) ...Respondents For the appellants: Barrister Masood Kausar, Sr. ASC. For the respondent: Nemo. Mr. Umar Khan, Law Officer, W.W.B. Date of hearing: 9.3.2016 ORDER Learned counsel for the respondent has sent an application for adjournment on the ground that his aunt has expired and he has to attend her funeral. Adjourned. Let it be fixed after two weeks. Judge Judge Judge Islamabad, the 9th March, 2016 Naveed Ahmad

{'id': 'C.A.1109_2013.pdf', 'url': ''}

{'id': 'C.A.1109_2013.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE FAISAL ARAB MR. JUSTICE SYED MANSOOR ALI SHAH CIVIL APPEALS NO.1113 TO 1155 OF 2017 AND CIVIL PETITIONS NO.3124, 387-P, 389-P, 392-P, 393-P, 394-P, 399-P, 400-P, 3027, 3028, 3029, 3030, 3138, 3241, 3259, 3260, 3327 AND 3411 OF 2017 AND 3385 OF 2018 (On appeal against the judgments dated 31.05.2017, 28.5.2019, 9.8.2017, 18.8.2017, 21.8.2017, 11.6.2015 passed by the Peshawar High Court, Peshawar in Writ Petition Nos. 2178-P/2015 & 2729 to 2731, 3056, 3057, 3058, 3081, 3082, 3109, 3110, 3111, 3112, 3113, 3118, 3137, 3157, 3216, 3268, 3297, 3413, 3489, 3890 of 2014, 542, 858, 885, 2160 to 2166, 2179 to 2182, 2164 to 2166, 2179 to 2198, 2210 to 2233, 2254, 2263 to 2265, 2287 to 2290, 2305, 2307, 2308, 2329, 2373, 2466 to 2468, 2533, 2556, 2558. 2575, 2576, 2589 to 2591, 2593, 2606, 2607, 2608, 2723, 2820, 2852, 2870, 3133, 3163, 3496, 3881, 3915, 3974, 4074, 4522 of 2015, 19, 165, 1415, 1757, 3569, 3849 of 2016, 1601, 1650, 1849, 3270-P, 33104-P, 3302-P, 2843-P of 2017, 2293-P, 778-A, 2232-P to 2234-P, 2427-P to 2429-P, 2472-P, 2938-P, 2939-P, 2940-P, 4300-P of 2016, 589-P, 2408-P of 2017, 3085-P/2014) AND CIVIL MISC. APPLICATIONS NO. 20, 86, 812, 813, 814, 815, 1022, 2014 OF 2020 AND 8277, 8278, 8279, 3076, 9149, 9186, 9301, 9305, 9521, 9746, 9844, 10608 OF 2019 AND 8497 OF 2018 AND 5307 & 9153 OF 2017 (Applications for Impleadment) AND CIVIL MISC. APPLICATIONS NO.5295, 5511, 5635, 5637, 5639, 5641, 5643, 5645, 5647, 5649, 5651, 5678 TO 5686, 5689 TO 5696, 5699, 5701, 5703, 5705, 5707, 5709, 5711, 5713 AND 5715 TO 5721 OF 2017 (Applications for Stay) Sr. No. Party Names Case No. 1. M/s Khurshid Soap & Chemical Industries (Pvt.) Ltd represented through Mr. Sheikh Muhammad Ilyas, KPK Versus (1) Federation of Pakistan through M/o Petroleum & Natural Resources etc CA 1113/2017 in CP 2687/2017 & CMA 5295/2017 2. Ghani Glass Limited through Mr. Zakir Mian, Manager Legal Versus (1) Federation of Pakistan through M/o Petroleum, Islamabad etc CA 1114/2017 in CP 2786/2017 & CMA 5511/2017 3. AJ Textile Mills Limited through its Authorized Director Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc. CA 1115/2017 in CP 2898/2017 & CMA 5635/2017 4. AJ Textile Mills Limited through CA 1116/2017 in Civil Appeals No.1113 to 1155 of 2017 etc. -: 2 :- its Authorized Director Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CP 2899/2017 & CMA 5637/2017 5. (1) Saif Textile Mills Ltd, Peshawar etc. Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1117/2017 in CP 2900/2017 & CMA 5639/2017 6. (1) Saif Textile Mills Ltd, Peshawar Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad CA 1118/2017 in CP 2901/2017 & CMA 5641/2017 7. Sarhad Textile Mills Ltd, Peshawar Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1119/2017 in CP 2902/2017 & CMA 5643/2017 8. (1) Rahman Cotton Mills Ltd, Mardan etc Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad CA 1120/2017 in CP 2903/2017 & CMA 5645/2017 9. Sarhad Textile Mills Ltd, Peshawar Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1121/2017 in CP 2904/2017 & CMA 5647/2017 10. M/s Babri Cotton Mills Ltd, Kohat Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad CA 1122/2017 in CP 2905/2017 & CMA 5649/2017 Civil Appeals No.1113 to 1155 of 2017 etc. -: 3 :- 11. M/s Bannu Wollen Mills Ltd, Peshwar Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1123/2017 in CP 2906/2017 & CMA 5651/2017 12. M/s Ashraf Industries Pvt Ltd, Peshawar Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1124/2017 in CP 2926/2017 & CMA 5678/2017 13. M/s Ashraf Industries Pvt Ltd, Peshawar Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1125/2017 in CP 2927/2017 & CMA 5679/2017 14. M/s Khyber Tubaco Co. Ltd, Mardan Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1126/2017 in CP 2928/2017 & CMA 5680/2017 15. M/s Hussnain Daud Oil & Ghee Mills Ltd, Peshawar Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1127/2017 in CP 2929/2017 & CMA 5681/2017 16. Royal Textile Mills Limited, Swabi Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1128/2017 in CP 2930/2017 & CMA 5682/2017 17. Swat Tyre & Rubber Co. Pvt Ltd, Peshawar Versus (1) Federation of Pakistan through M/o Petroleum and Natural CA 1129/2017 in CP 2931/2017 & CMA 5683/2017 Civil Appeals No.1113 to 1155 of 2017 etc. -: 4 :- Resources, Islamabad etc 18. (1) M/s Khyber Electric Lamps Manufacturing Co. Ltd etc Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1130/2017 in CP 2932/2017 & CMA 5684/2017 19. Al Jasmin Pvt Ltd, Peshawar Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1131/2017 in CP 2933/2017 & CMA 5685/2017 20. Pakistan Accumulators Pvt Ltd, Peshawar Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1132/2017 in CP 2945/2017 & CMA 5686/2017 21. M/s MB Dyes Chemical & Silk Industry Pvt Ltd Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1133/2017 in CP 2946/2017 & CMA 5689/2017 22. (1) M/s Sarhad Ceramics Industries, Mansehra etc Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1134/2017 in CP 2942/2017 & CMA 5690/2017 23. Taj Enterprises Plaster of Paris, Peshawar Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1135/2017 in CP 2948/2017 & CMA 5691/2017 24. MKB Enterprises Pvt Ltd, Peshawar CA 1136/2017 in CP 2949/2017 Civil Appeals No.1113 to 1155 of 2017 etc. -: 5 :- Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc & CMA 5692/2017 25. M/s Unisa Pharmaceutical Industries Ltd Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1137/2017 in CP 2950/2017 & CMA 5693/2017 26. Frontier Foundry Pvt. Ltd, Peshawar Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1138/2017 in CP 2951/2017 & CMA 5694/2017 27. TKM Enterprises, Peshawar Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1139/2017 in CP 2952/2017 & CMA 5695/2017 28. M/s Deans Industries, Peshawar Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1140/2017 in CP 2953/2017 & CMA 5696/2017 29. M/s Amin soap & Oil Industries Pvt Limited Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1141/2017 in CP 2954/2017 & CMA 5699/2017 30. Brightex Industries Pvt Limited, Swabi Versus (1) Federation of Pakistan through CA 1142/2017 in CP 2955/2017 & CMA 5701/2017 Civil Appeals No.1113 to 1155 of 2017 etc. -: 6 :- M/o Petroleum and Natural Resources, Islamabad etc 31. Zainab Textile Mills Limited, Haripur Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1143/2017 in CP 2956/2017 & CMA 5703/2017 32. The Premier Sugar Mills & Distillery Co. Limited, Mardan Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1144/2017 in CP 2957/2017 & CMA 5705/2017 33. M/s Associated Industries Limited, Nowshera Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1145/2017 in CP 2958/2017 & CMA 5707/2017 34. Khazana Sugar Mills, Peshawar Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1146/2017 in CP 2959/2017 & CMA 5709/2017 35. Swat Ceramics Company Ltd, Nowshera. Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1147/2017 in CP 2960/2017 & CMA 5711/2017 36. Peshawar Chemicals, Peshawar Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CA 1148/2017 in CP 2961/2017 & CMA 5713/2017 37. Peshawar Ceramics Pvt Ltd, CA 1149/2017 in Civil Appeals No.1113 to 1155 of 2017 etc. -: 7 :- Peshawar Versus (1) SNGPL through its M.D, Lahore etc CP 2962/2017 & CMA 5715/2017 38. (1) M/s Economic Fuels Pt Ltd, Peshawar etc Versus (1) Federation of Pakistan through M/o Petroleum & Natural Resources, Islamabad etc CA 1150/2017 in CP 2963/2017 & CMA 5716/2017 39. (1) M/s Gas Mahal CNG Filling Station, Akora Khattak, District Nowshera etc Versus (1) Pakistan through Secretary Ministry of Petroleum & Natural Resources, Islamabad CA 1151/2017 in CP 2964/2017 & CMA 5717/2017 40. (1) M/s Khushal CNG Station, Pabbi etc Versus (1) Pakistan through Secretary Ministry of Petroleum & Natural Resources, Islamabad etc CA 1152/2017 in CP 2965/2017 & CMA 5718/2017 41. (1) M/s Orion Traders CNG Station No.2, Jehangira etc Versus (1) Pakistan through Secretary Ministry of Petroleum & Natural Resources, Islamabad etc CA 1153/2017 in CP 2966/2017 & CMA 5719/2017 42. (1) M/S Universal Gas CNG, Swabi etc Versus (1) Pakistan through Secretary Ministry of Petroleum & Natural Resources, Islamabad etc CA 1154/2017 in CP 2967/2017 & CMA 5720/2017 43. (1) M/s Evergreen CNG Station, Peshawar etc CA 1155/2017 in CP 2968/2017 Civil Appeals No.1113 to 1155 of 2017 etc. -: 8 :- Versus (1) Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad etc & CMA 5721/2017 44. (1) Mohsin Match Factory (Pvt.) Ltd., Peshawar Versus (1) Pakistan through Secretary Ministry of Petroleum & Natural Resources, Islamabad etc CP 387-P/2017 45. (1) Wadud Woolen Mills Ltd., Peshawar etc Versus (1) Govt. of Pakistan through Secretary Ministry of Petroleum & Natural Resources, Islamabad etc CP 389-P/2017 46. (1) M/s Maclone Lubrication, Peshawar Versus (1) Federation of Pakistan through Secretary Ministry of Petroleum & Natural Resources, Islamabad etc CP 392-P/2017 47. (1) M/s Bilour Industries Pvt. Ltd., Peshawar Versus (1) Federation of Pakistan through Secretary Ministry of Petroleum & Natural Resources, Islamabad etc CP 394-P/2017 48. (1) M/s AGE Industries Pvt. Ltd., Peshawar Versus (1) Federation of Pakistan through Secretary Ministry of Petroleum & Natural Resources, Islamabad etc CP 399-P/2017 49. (1) M/s Elahi Match Pvt. Ltd., Peshawar Versus (1) Federation of Pakistan through Secretary Ministry of Petroleum & CP 400-P/2017 Civil Appeals No.1113 to 1155 of 2017 etc. -: 9 :- Natural Resources, Islamabad etc 50. (1) M/s Ejaz Poultry Protein (Pvt.) Ltd., Haripur Versus (1) Federation of Pakistan through Secretary Ministry of Petroleum & Natural Resources, Islamabad etc CP 3027/2017 51. (1) M/s Hattar Rendering Plant (Pvt.) Ltd. Haripur Versus (1) Federation of Pakistan through Secretary Ministry of Petroleum & Natural Resources, Islamabad etc CP 3028/2017 52. (1) M/s Pan Asia Food Products (Pvt.) Ltd., Hattar, KPK Versus (1) Federation of Pakistan through Secretary Ministry of Petroleum & Natural Resources, Islamabad etc CP 3029/2017 53. (1) M/s Pakistan Services Limited Versus (1) Pakistan through Secretary Ministry of Petroleum & Natural Resources, Islamabad etc CP 3124/2017 54. (1) Lucky Cement Limited, Peshawar Versus (1) Pakistan through Secretary Ministry of Petroleum & Natural Resources, Islamabad etc CP 3138/2017 55. (1) M/s Sohail Vegetable Ghee Mills (Pvt.) Ltd. Peshawar Versus (1) Federation of Pakistan through Secretary Ministry of Petroleum & Natural Resources, Islamabad etc CP 393-P/2017 56. (1) M/s Usman Ghee Industry CP 3030/2017 Civil Appeals No.1113 to 1155 of 2017 etc. -: 10 :- (Pvt.) Ltd., Swabi Versus (1) Federation of Pakistan through Secretary Ministry of Petroleum & Natural Resources, Islamabad etc 57. Khyber Match Factory Pvt Ltd Versus (1) Federation of Pakistan through M/o Petroleum, Islamabad etc CP 3241/2017 58. Sana Aluminum Industries Pvt Ltd Versus (1) Federation of Pakistan through M/o Petroleum, Islamabad etc CP 3259/2017 59. Top Star Industries Pvt Ltd Versus (1) Federation of Pakistan through M/o Petroleum, Islamabad etc CP 3260/2017 60. M/s Mohsin Enterprises Pvt Ltd Versus (1) Federation of Pakistan through M/o Petroleum, Islamabad etc CP 3327/2017 61. M/s Frontier Dextrose Limited, Haripur Versus (1) Federation of Pakistan through M/o Petroleum, Islamabad (2) OGRA through Chairman, Islamabad (3) SNGPL through its M.D, Lahore (4) G.M. SNGPL, Peshawar (5) Province of KPK through Chief Secretary CP 3385/2018 62. M/s Abasement Steel Re-Rolling Mills CP 3411/2017 Civil Appeals No.1113 to 1155 of 2017 etc. -: 11 :- Versus (1) Federation of Pakistan through M/o Petroleum, Islamabad etc 63. AJ Textile Mills Limited Versus K-Electric Limited CMA 9153/2017 64. (1) M/s Alamyar CNG Station, Lakki Marwat etc Versus (1) Federation of Pakistan through M/o Petroleum and Natural Resources, Islamabad etc CMA 3076/2019 in CA 1132/2017 in CA 1113- 1115/17 65. (1) Iqbal Baig sole proprietor of M/s Labaik CNG Station, Hyderabad etc CMA 9149/2019 66. M/s Citi CNG Zone, Karachi CMA 9305/2019 in CMA 9149/2019 in CP 3138/2017 (For Impleadment and for deletion of name) 67. M/s Habib-ADM Limited, Karachi CMA 10608/2019 in CP 3138/2017 68. (1) Prime Coat Pvt Ltd, Karachi etc CMA 20/2020 in CP 3138/2017 69. (1) International Industries Limited, Karachi (2) International Steel Limited, Karachi (3) Pakistan Cable Limited, Karachi (4) Colgate-Palmolive (Pakistan) Limited, Karachi (5) M/s Popular Food Industries Pvt Limited, Karachi CMA 9746/2019 in CP 3138/2017 Civil Appeals No.1113 to 1155 of 2017 etc. -: 12 :- (6) M/s Popular Juice Industries Pvt Limited, Karachi (7) M/s Popular Aseptic Packaging Pvt Limited, Karachi (8) M/s Popular Fiber Mills Pvt Ltd, Karachi (9) M/s Popular Fabrics Pvt Ltd, Karachi (10) M/s Popular Match Industries, Karachi (11) Ghulam Ali Bhatia proprietor of M/s S.A. Brothers, Karachi (12) Asif Kazani proprietor of M/s Mehboob Re Rolling Mills, Karachi 70. (1) M/S Model Service Station, Karachi etc CMA 8497/2018 in CP 3138/2017 71. M/s Shahjee CNG Rawalpindi CMA 8279/2019 72. M/s Panthar CNG Station, Peshawar and another CMA 8278/2019 73. M/s Daudzai CNG Filling Station, Peshawar and others CMA 8277/2019 74. Fauji Fertilizer Company Ltd, Rawalpindi CMA 9186/2019 75. M/s Enam Industries (Pvt) Ltd etc CMA 5307/2017 76. M/s SNGPL CMA 812/2020 77. M/s SNGPL CMA 813/2020 78. M/s SNGPL CMA 814/2020 79. M/s SNGPL CMA 815/2020 80. Century Paper & Board Mills Limited CMA 1022/2020 81. M/s Al-Muizz Group CNG Station, Kohat CMA 9521/2019 82. Fauji Fertilizer Bin Qasim Limited, Islamabad CMA 9301/2019 83. M/s Badhan CNG Station, CMA 9844/2019 Civil Appeals No.1113 to 1155 of 2017 etc. -: 13 :- Nowshera 84. M/s Akram Cotton Mills Limited and another CMA 2014/2020 85. M/s Akram Cotton Mills etc CMA 86/2020 For the appellant(s)/ Applicant(s)/petitioner(s): Mr. Makhdoom Ali Khan, Sr. ASC Mr. Saad Hashmi, Adv. (In C.As.1150 to 1155/2017) Mr. Rashid Anwar, ASC (via video link @ Karachi) Syed Rifaqat Hussain Shah, AOR (In C.As.1115 to 1123/2017) Mr. Isaac Ali Qazi, ASC (via video link @ Peshawar) Mr. M. S. Khattak, AOR (In C.As.1124 to 1127, 1133, 1134/17, CPs.3027-3030 & 3411/17) Mr. Anwar, Kamal, Sr. ASC Br. Ahmed Pervaiz (In CMA 86/20) Kh. Muhammad Saeed, ASC (In CA 1114/17) Syed Haziq Ali Shah, ASC Mr. M. S Khattak, AOR (In C.As.1128 to 1131, 1135 to 1140/2017 & C.Ps.3124, 3259 & 3260/2017) Sardar Muhammad Ghazi, ASC Syed Rifaqat Hussain Shah, AOR (In C.A.1132/2017 & C.M.As.8277, 8278 & 9521/2019) Ms. Navin Merchant, ASC (In C.M.A. 9746/2019) Mr. Abid S. Zuberi, ASC (In C.M.A. 9153/2019) Qazi Ghulam Dastgir, ASC (in C.As.1113, 1141-1149/17, 3076/19) Salman Akram Raja, ASC (via video link @ Lahore) Mr. Mehmood A. Sheikh, AOR (In C.P.3138/2017 & CMA 9186, 9301/19) Mr. Ijaz Ahmed Zahid, ASC Civil Appeals No.1113 to 1155 of 2017 etc. -: 14 :- Mr. Habib Bhatti, ASC (in CMA 1022/20) Mr. Abdul Munim Khan, ASC Mr. Tasleem Hussain, AOR (via video link @ Peshawar) (In C.Ps.387-P, 389-P, 3327/2017) Mr. Tasleem Hussain, ASC/AOR (via video link @ Peshawar) (In C.Ps.392-P to 394-P, 399-P, 400-P & 3241/2017) Mr. Muneer A. Malik, Sr.ASC Ch. Atif Rafique, ASC (via video link @ Kar) Mr. Kassim Mirjat, AOR Syed Rifaqat Hussain Shah, AOR (in CMA.8497/18 & 9149/19) Syed Iqbal Hashmi, ASC Ch. Akhtar Ali, AOR (in CMA.9746/19) For SNGPL: For SNGPL: Mr. Waqar Ahmed Rana, ASC (In all Appeals/Petitions) Br. Mian Belal, ASC Br. Muhammad Adil Fayyaz (in CMAs.812-815/20) For Federation: For ICT: Mr. Anwar Mansoor Khan, Attorney General Ch. Aamir Rehman, Addl. AGP Mr. Sohail Mehmood, D.A.G. Mr. Sajjid Ilyas Bhatti, Addl. AG Mr. Niaz Ullah Niazi, Advocate General For Govt. of Balochistan: Mr. M. Ayaz Swati, Addl. AG Mr. M. Farid Dogar, AAG For Govt. of Punjab: For Govt. of KP: Ch. Faisal Farid, Addl. AG Mr. Shumail Butt, AG For Accountant General for Pakistan: For OGRA: Mr. Sardar Azmat Shafi, Accountant Gen. of Pak. Mr. Rizwan ul Haq, Sr. Executive Dir. (Litigation) (OGRA) Mrs. Taybbah Ahsan, JED, Fin. (OGRA) Ms. Samia Khalid, ASC (OGRA) Mr. Aatif Sajjad, Executive Dir. Fin. (OGRA) Mr. Sajid Zahid Rauf, JED Gas (OGRA) Syed Faisal Ishtiaq, Law Officer (OGRA)) Dr. Abdul Basit Qureshi, Registrar, OGRA Civil Appeals No.1113 to 1155 of 2017 etc. -: 15 :- For Finance Division, Govt. of Pakistan: For ISGCL: For M/o Petroleum: Mr. Atif Hussain, JED Fin. OGRA Mr. Asif, JED (Gas) OGRA Mr. Anwar, Sr. JS Fin. Div. Mr. Tanvir Butt, Sr. JS (Budget) Fin. Div. Mr. Sajjad Azhar, Dy. Secy. Budget Resources Mr. Javed Iqbal Khan, JS, B-II Fin. Div. Mr. Mobeen Solat, MD, ISGCL Mr. Abdul Maqsood Malik, EDG, Dir. Petroleum Dates of hearing: 03.02.2020, 10.02.2020, 11.02.2020, 12.02.2020, 13.02.2020, 17.02.2020, 18.02.2020, 19.02.2020 & 20.02.2020 JUDGMENT FAISAL ARAB, J. - The appellants as well as the petitioners and the intervenors all utilize natural gas for their industrial and commercial activities. Some of them even use natural gas as fuel for their in-house power generation facilities. Those who own CNG stations use natural gas for converting it into Compressed Natural Gas (CNG) at their filling stations and then sell it to their customers. 2. Before discussing the controversy involved in the case we find it appropriate to briefly discuss the background of the laws that imposed Cess from the year 2011. 3. In the year 2011 the Gas Infrastructure Development Cess Act, 2011 (GIDC Act, 2011) was legislated through a bill introduced in the National Assembly as a Money Bill by treating the imposition thereunder as a specie of ‘tax’ whereby Cess was imposed on industrial and commercial consumers of natural gas. This was done to finance the cost which Pakistan has to bear for laying the overland pipelines through which natural gas was to be imported into the country from Iran and Turkmenistan. Apart from import of natural gas from the above two countries, LNG imported from Qatar on ships, after its discharge at the Karachi port, was to be gasified and transported up-country through a pipeline called North-South pipeline. The said Act was challenged by the Civil Appeals No.1113 to 1155 of 2017 etc. -: 16 :- industrial and commercial consumers of natural gas located in the Province of Khyber Pakhtunkhwa in the Peshawar High Court in the year 2011 and they succeeded in seeking a declaration that it is ultra vires the Constitution in the year 2013. The Federal Government appealed which was dismissed by this Court on 22.08.2014 after holding that the GIDC Act, 2011 in its character is a fee-imposing enactment, its bill could not have been introduced in the National Assembly as a Money Bill under the provisions of Article 73 of the Constitution. The said Act was thus declared to be ultra vires the Constitution, which decision has come to be known as Durrani Ceramics case reported in 2014 SCMR 1630. 4. Soon after the decision in Durrani Ceramics case, the President on 25.09.2014 promulgated the Gas Infrastructure Development Cess Ordinance, 2014 through which Cess on natural gas was again imposed, which Ordinance was also given retrospective effect from 15.12.2011, the date when the GIDC Act, 2011 came into effect. While the GIDC Ordinance, 2014 was still in the field, the Federal Government sought review of Durrani Ceramics case which was dismissed by this Court vide judgment dated 15.04.2015 reported as Federation of Pakistan v. Durrani Ceramics (PLD 2015 SC 354). 5. Within a month of the dismissal of the review petition, the Parliament on 15.05.2015 passed the Gas Infrastructure Development Cess Act, 2015 (GIDC Act, 2015) whereby Cess was again imposed on all consumers of natural gas excluding the domestic sector consumers. The purpose of its imposition was the same as was stated in the GIDC Act, 2011. In terms of Section 8 of GIDC Act, 2015 the levy and collection of Cess made under the GIDC Act, 2011 as well as under GIDC Ordinance, 2014 was also legitimized with retrospective effect. 6. In this second round of litigation the industrial and commercial consumers assailed the vires of the GIDC Act, 2015 before the Sindh High Court as well as in the Peshawar High Court claiming that like GIDC Act, 2011 the GIDC Act, 2015 be also Civil Appeals No.1113 to 1155 of 2017 etc. -: 17 :- declared ultra vires the Constitution as it has been enacted by the parliament beyond its legislative competence. The Sindh High Court declared the levy unconstitutional vide judgment dated 26.10.2016 whereas the Peshawar High Court upheld the levy vide judgment passed on 31.05.2017 declaring the GIDC Act, 2015 to be intra vires the Constitution. These appeals have arisen from such decision with the leave of this Court. 7. On 22.10.2019 when this case came up for hearing, it was pointed out to us by Mr. Muneer A. Malik, one of the counsel for the intervenors that 377 suits were filed by invoking Original jurisdiction of the Sindh High Court in which the vires of GIDC Act, 2015 were challenged and all were decreed vide common judgment dated 26.10.2016 whereby the GIDC Act, 2015 was declared to be ultra vires the Constitution. He further pointed out that the Federal Government has filed only one appeal bearing High Court Appeal No. 361 of 2016 against the plaintiff of one suit and not against the plaintiffs of the remaining 376 suits, including his client. They were not even made party in the said appeal and the time for filing appeal against them had already gone by. He contended that on account of such omission the decision rendered by the Single Judge has attained finality on the principle of res judicata for the rest of the plaintiffs and accordingly the GIDC Act, 2015 in their cases is to be treated as ultra vires the Constitution and Cess cannot be charged from them. In support of this argument Mr. Muneer A. Malik relied upon the judgment of this Court rendered in the case of Pir Bukhsh & Others vs. Chairman Allotment Committee (PLD 1987 SC 145). As these appeals and connected petitions have emanated only from the decision of the Peshawar High Court which declared the GIDC Act, 2015 to be intra vires the Constitution this led us to pass an order on the said date that in identical matters pending in other High Courts opportunity be given to such litigants and their counsel to present their case before us on the merits of the controversy. This was done so that the challenge to the vires of the said Act be adjudicated upon once and for all at this Court’s level. Pursuant to our order dated 22.10.2019 several miscellaneous applications for joining in these proceedings as party were filed by those who had Civil Appeals No.1113 to 1155 of 2017 etc. -: 18 :- challenged the vires of the GIDC Act, 2015 in various other High Courts. All of them were given opportunity to present their point of view on the merits of the controversy. Certain other petitions which were filed against the judgment of the Peshawar High Court but did not come up for hearing at the time of grant of leave of these appeals were also taken up for hearing so that the same could be decided together with the appeals. 8. Before we proceed to decide the merits of the main controversy we prefer to address the plea of res judicata raised by the intervenors first. 9. The principle of res judicata is a principle of peace. Once a controversy with regard to a right in property or a right to office is adjudicated upon and attains finality through a judicial pronouncement of a competent Court of law, it no more remains open to challenge in any subsequent judicial proceedings between the same parties on the same subject matter. This principle is intended not to afford a litigant more than one opportunity for resolution of a judicial dispute and thus eliminates the chances of repetitious and successive litigation against a party on the same issue. The maxim that there should be an end to litigation is germane to such matters. 10. Any relief which a litigant seeks in a judicial proceeding with regard to any power or a right or an obligation connected with some property or an office which power or right or obligation is not dependent upon the legitimacy of a legislative enactment and stands or falls on its own strength then in such cases when the decision rendered by a court of competent jurisdiction attains finality, there is no difficulty in applying the principle of res judicata to such a decision. However, it would be difficult to apply such a principle in matters where a power or a right or an obligation solely depend upon the very legitimacy of the enactment that has come under challenge in a Court of law on the touchstone of the Constitution. In such a situation the existence of such power or right or obligation would solely depend on the final adjudication as to the legal validity of the enactment itself. This could be Civil Appeals No.1113 to 1155 of 2017 etc. -: 19 :- understood from a situation where a controversy as regards constitutional validity of an enactment has come under challenge before two High Courts, one declaring the enactment ultra vires the Constitution and the other intra vires. If the principle of res judicata is applied to the decision of the High Court that declared the law ultra vires as the same was not challenged any further by the Government then two conflicting declarations would stand side by side on the legitimacy of a legislative enactment, one party treating the law valid and the other invalid. This would lead to treating an Act of the parliament valid for some and invalid for others though both the set of persons are similarly placed. If the decision rendered by the High Court that declared the law intra vires the Constitution is only challenged before the Supreme Court and after examining the merits of the case the enactment is declared by this Court to be intra vires the Constitution, then in such peculiar situation when this Court finally validates the legislative enactment then the same has to be applied uniformly to every person falling within its ambit. Such final judicial determination on the legitimacy of a legislative enactment has to be treated as a judgment in rem regardless of the fact that the judgment of the High Court that invalidated the very same enactment was not challenged before this Court. Such a situation warrants departure from the doctrine of res judicata. Omission of a public functionary to file appeal cannot put fetters on the universal application of a legislative enactment declared by this Court to be constitutionally valid as it would amount to repealing the statute for some and treating it valid for others. Hence conflicting decisions on the vires of a legislative enactment of two High Courts, decision of one remains unchallenged in the hierarchy as no appeal was preferred and the other is challenged before this Court, then the verdict of the High Court that went unchallenged, which is in conflict with the final decision of this Court has to be treated as outmoded and no longer executable. The Supreme Court of the United States of America took note of a similar situation in the case of United States vs. Stone & Downer Co. [274 U.S. 225 (1927)] and held that if some of the persons are released from the application of a provision of legislative enactment on the principle of res judicata, it will lead to inequalities and discrimination Civil Appeals No.1113 to 1155 of 2017 etc. -: 20 :- causing injustice and confusion. It was held that in such a situation the plea of res judicata cannot be sustained. Following passages from the said judgment of the Supreme Court where it refused to apply the principle of res judicata in a revenue matter can be quoted with considerable advantage: ‘………. One large importing house may secure a judgment in its favor from the Customs Court on a question of fact as to the merchandise of a particular importation or a question of construction in the classifying statute. If that house can rely upon a conclusion in early litigation as one which is to remain final as to it and not to be reheard in any way, while a similar importation made by another importing house may be tried and heard and a different conclusion reached, a most embarrassing situation is presented. The importing house which has by the principle of the thing adjudged obtained a favorable decision permanently binding on the government will be able to import the goods at a much better rate than that enjoyed by other importing houses, its competitors. Such a result would lead to inequality in the administration of the customs law, to discrimination and to great injustice and confusion. In the same way, if the first decision were against a large importing house and its competitors instituted subsequent litigation on the same issues with new evidence or without it and succeeded in securing a different conclusion, the first litigant, bound by the judgment against it in favor of the government must permanently do business in importations of the same merchandise at great and inequitable disadvantage with its competitors. These were doubtless the reasons which actuated the Court of Customs Appeals when the question was first presented to it to hold that the general principle of res judicata should have only limited application to its judgments………………………………The fact that objection to the practice has never been made before in the history of this court or in history of the Court of Customs Appeals in 18 years of its life is strong evidence, not only of the wisdom of the practice, but of general acquiescence in its validity. The plea of res judicata cannot be sustained in this case.’ Civil Appeals No.1113 to 1155 of 2017 etc. -: 21 :- 11. In the case of Pir Bukhsh & others V. Chairman Allotment Committee (PLD 1987 SC 145), on which much reliance was placed by Mr. Muneer A. Malik, the learned counsel for one of the intervenors, the controversy was with regard to a right of allotment of land which did not depend on the constitutionality of a legislative enactment. In that case, the principle of res judicata clearly applied but this principle, as discussed above, cannot be applied in the same manner to a case where any power or a right or an obligation of a person solely depend upon the legitimacy of a legislative enactment without which such power or right or obligation has no existence of its own. Hence, when the power of the government to charge and the obligation of the persons to pay a tax or a fee depends on the determination of vires of a legislative enactment then the final determination of this Court has to be uniformly applied on all those upon whom the law was intended to apply otherwise it would be applied in a discriminatingly manner to a section of persons belonging to one and the same class of persons. The final determination of this Court on the legitimacy of a law has to apply even to those who had succeeded in obtaining a judgment from a Court lower in the hierarchy that the law is ultra vires the Constitution, they too would be bound by the judgment of this Court which being the final Court of the judicature has through a judicial pronouncement declared a legislative enactment to be valid. The power of the Federal Government to charge the Cess and the obligation of the payers to pay under GIDC Act, 2015 would depend upon such final determination by this Court. Such power or obligation arising from an enactment will not cease to exist for the reason that the High Court in some other proceedings has declared the said Act ultra vires the Constitution which remained unchallenged. We in our minds are therefore clear that where there are two conflicting adjudications with regard to the constitutionality of a legislative enactment, standing side by side, then the one that has the binding effect on the other has to become the law of the land on the subject without any distinction whatsoever as an Act of the Parliament in its application cannot be allowed to be regarded as intra vires the Constitution for one set of persons and ultra vires for another at the same time when both belong to the same class of persons. If this is allowed, it would Civil Appeals No.1113 to 1155 of 2017 etc. -: 22 :- result in discrimination as some would be bound to discharge the obligation arising from the Act of the Parliament thereby putting them in disadvantageous position against those who are discharged from the obligation on the principle of res judicata. Such a position cannot be allowed to be sustained. 12. The validity of the plea of res judicata can be looked at from another angle also. The learned Additional Attorney General has pointed out that one High Court Appeal has been filed against the common judgment of the Single Judge of the Sindh High Court rendered in 377 suits and those decree holders who have been left out in that appeal would be made party in the pending appeal. If that has already been done then this Court in similar situation has held in the cases of Mehran Zaibun Nisa etc. versus Land Commissioner, Multan etc. (PLD 1975 SC 397) and Province of Punjab versus Muhammad Tayyab (1989 SCMR 1621) that a matter filed after the period of limitation can also be decided on merits with a connected case that was filed within time. So belated joining of some of the parties in the appeal as respondents who were initially not made party would not be of much consequence. In any case, the right of the Federal Government to challenge the judgment of the Single Judge of the Sindh High Court cannot be said to be altogether lost as one appeal is still pending. So, the decision of the Sindh High Court cannot be said to have attained finality in the strict sense of the word. Even otherwise, the right of the Federal Government to defend the decision of the Peshawar High Court in these proceedings before us does not get swallowed by the judgment of the Sindh High Court. That right also still subsists. There is yet another aspect of the matter. We vide our order dated 22.10.2019 had decided to hear all the parties who have challenged the GIDC Act, 2015 in the High Courts so that their point of view on the controversy could also be heard on merits. So, as intervenors, not only the plaintiff against whom High Court Appeal has been filed joined the proceedings and through its counsel addressed this Court on the merits of the main controversy but the counsel of those plaintiffs against whom no appeal was filed have also addressed this Court on merits of the controversy so that the controversy relating to the validity of GIDC Civil Appeals No.1113 to 1155 of 2017 etc. -: 23 :- Act, 2015 is finally decided. For this reason too the principle of res judicata would also not come in the way of the Federal Government. In these circumstances the maxim that there should be end to litigation once the matter has been finally decided is not attracted as finality with regard to validity or otherwise of the GIDC Act, 2015 is yet to be reached in these proceedings. In the peculiar situation stated above, the plea of res judicata cannot be sustained. 13. We shall now proceed to examine the merits of the main controversy. 14. The bill of GIDC Act, 2015 was introduced under the provisions of Article 70 of the Constitution by treating it as a specie of fee-levying enactment which was accordingly passed by both houses of the Parliament. This was done for the reason that when the bill of GIDC Act, 2011 was introduced in the National Assembly through a Money Bill as a tax-imposing enactment the same was struck down in Durrani Ceramics case for the reason that the levy being a fee imposing enactment, its bill could not have been introduced in the National Assembly under Article 73 of the Constitution as a Money Bill. 15. Mr. Makhdoom Ali Khan as lead counsel for the appellants argued the case, whose arguments were adopted by several counsel appearing on behalf of the appellants, petitioners and the intervenors. The counsel who also made additional submissions were Mr. Muneer A. Malik, Mr. Salman Akram Raja, Mr. Rashid Anwar, Mr. Isaac Ali Qazi, Mr. Anwar Kamal, Syed Haziq Ali Shah, Sardar Muhammad Ghazi, Mr. Abid S. Zuberi, Qazi Ghulam Dastgir, Mr. Ijaz Ahmed, Mr. Abdul Munim Khan and Mr. Tasleem Hussain. Barrister Mian Bilal argued on behalf of Sui Northern Gas Pipeline Limited and Chaudhry Aamir Rehman, learned Additional Attorney General argued on behalf of the Federation. 16. The arguments that were advanced on behalf of the counsel for appellants / petitioners / intervenors, which are relevant for the disposal of these cases on merits of the main controversy can be summarized as follows:- Civil Appeals No.1113 to 1155 of 2017 etc. -: 24 :- a) The GIDC Act, 2015 would survive only if the Federation can demonstrate that it is a fee-levying enactment and that too within the ambit of Entry 2 read with Entry 15 of Part II of the Federal Legislative List contained in the Fourth Schedule to the Constitution. The GIDC, Act, 2015 is neither a tax nor a fee which places it outside the Fourth Schedule, hence ultra vires the Constitution. b) Fee can only be levied and collected if the state provides a service directly in return to the payer otherwise it would be a tax-imposing enactment. It is the direct nature of the service which marks the boundary between tax and fee. The Federation could not show that any direct or special service would be provided to the appellants as a reward or recompense for payment of the fee. There is no quid pro quo in the enactment. c) There can be compulsory exactions but must be based on services which are available or may be made available immediately or shortly after the payment of the fee. It is not necessary that a service is rendered in full immediately on payment of fee as it can be rendered incrementally. There may also be a gap between the payment of fee and provision of service, however the provision of the service cannot be indefinitely postponed on a hope to be provided in the unforeseeable future. d) Section 4 of the Act, 2015 provides that Cess is to be used for the development of Iran-Pakistan Pipeline Project (IP) as well as Turkmenistan-Afghanistan-Pakistan-India Pipeline Project (TAPI). Both projects mentioned in Section 4 of the Act 2015 have neither commenced nor has the government given any tangible timeframe for their launch or completion. The two terminals that are operated by Engro and PGPCL at Karachi port are financed from other sources so the Cess is no longer to be utilised for LNG and now can only be utilised for IP and TAPI projects and projects ancillary thereto. e) Under Section 4 of GIDC Act, 2015, the Cess is a specific purpose levy, the Federation is not free to use it as it pleases. Civil Appeals No.1113 to 1155 of 2017 etc. -: 25 :- There was no evidence of the amount collected towards Cess ever having been spent for the specified purposes. Between 2011 and 30th June 2019 a sum of Rs.295,402,787,597.67 has been collected out of which Rs.279,575,000 and Rs.207,664,501 have been spent. The Government has failed to justify the collection of Cess. f) Revenue of Cess so far collected has not been put in any special fund but has been made part of general revenues of the state and retained in the Federal Consolidated Fund. g) The Second Schedule to GIDC Act, 2015 only mentions the maximum rates of tax but the actual rate of tax to be charged was not specified. h) The supply of gas in the province of Khyber Pakhtunkhwa is in excess of the demand, therefore, the GIDC Act, 2015 conferred no benefit on its residents. The shortage was created for reasons extraneous to the demand in the Province. i) Section 3(1) of the GIDC Act, 2015 used the terms ‘levied’ and ‘charged’ which indicate that it is a tax imposing enactment and not ‘fee’ and while enacting GIDC Act, 2011 which is a similar Act, legislated as a tax-imposing enactment. 17. In support of their arguments learned counsel for the appellants / petitioners / intervenors have placed reliance on the cases of Collector of Customs v. Shaikh Spinning Mills (1999 SCMR 1402), Abdul Majid v. Province of East Pakistan (PLD 1960 Dacca 502), Sohail Jute Mills v. Federation of Pakistan (PLD 1991 SC 329), Nishat Tek Ltd, Lahore v. Federation of Pakistan (PLD 1994 Lahore 347), M/s Fatima Enterprises Ltd. v. Federation of Pakistan (1999 MLD 2889), M/s Coca-Cola Beverages v. Cantonment Board Chaklala Rawalpindi (2011 MLD 1987), Soneri Bank Ltd v. Federation of Pakistan (2013 PLC Labour 134), East Pakistan Chrome Tannery (Pvt.) Ltd. v. Federation of Pakistan and others (2011 PTD 2643), Pakcom Ltd v. Federation of Pakistan (PLD 2011 SC 44), Azgard Nine v. Government of Pakistan (2013 PTD 1030), Tata Textile Mills v. Federation of Pakistan (2013 PTD 1459), M/s Civil Appeals No.1113 to 1155 of 2017 etc. -: 26 :- Shahbaz Garments Pvt. Ltd v. Federation of Pakistan (2013 PTD 969), Associated Industries Ltd v. Government of Pakistan (2015 PTD 193), Workers’ Welfare Funds, M/o Human Resources Development, Islamabad and others v. East Pakistan Chrome Tannery (Pvt.) Ltd. and others (PLD 2017 SC 28), Flying Cement Company v. Federation of Pakistan (PLD 2016 Lahore 35), Dr. Mahmood-ur-Rehman Faisal v. Secretary Ministry of Law (PLD 1992 FSC 195), ABN Amro Bank N.V. v. M.D KW&SB (2006 CLC 597), Kewal Krishan Puri and others v. State of Punjab and others (1980) 1 SCC 416), State of Maharashtra v. Salvation Army (AIR 1975 SC 846), Al-Samrez Enterprises v. Federation of Pakistan (1986 SCMR 1917), The Hingri-rempur Coal Co. Ltd and Ors. v. The State of Orissa and Ors. (AIR 1961 SC 459), Sona Chandi Oaz Committee v. State of Maharashtra (AIR 2005 SC 635), FECTO Belarus Tractor Ltd v. Government of Pakistan (PLD 2005 SC 605), Dr. Mohashir Hassan v. Federation of Pakistan (PLD 2010 SC 265), Contempt Proceedings against Chief Secretary, Sindh (2014 PLC (CS) 82), Pir Baksh v. the Chairman, Allotment Committee (PLD 1987 SC 145). Human Rights Case No.14392 of 2013 and Suo Motu Case No.1 of 2013 (2014 PTD 243), Shahtaj Sugar Mills Ltd v. Province of Punjab (1998 SCMR 2492), The Town Municipal Committee, Amravati v. Ramchandra Vasudeo Chimote and Another. (AIR 1964 SC 1166), M/s. Ujagar Prints and others v. Union of India and others (AIR 1989 SC 516), Baz Muhammad Kakar v. Federation of Pakistan (PLD 2012 SC 923), Kewel Krishan v. State of Punjab (AIR 1980 SC 1008) and State of Maharashtra v. Salvation Army (AIR 1975 SC 846). 18. Learned Additional Attorney General has placed reliance on the cases of B.S.E. Brokers’ Forum, Bombay and others v. Securities and Exchange Board of India and others (2001 (3) SCC 482), Krishi Utpadan Mandi Samiti v. Ashok Kumar Dinesh Chandra and another (1996 (10) SCC 100), The City Corporation of Calicut v. Thachambalath Sadasivan and others (AIR 1985 SC 756), M/s. Gasket Radiators Pvt. Ltd. v. Employees’ State Insurance Corporation and another (AIR 1985 SC 790). Barrister Mian Bilal has placed reliance on the case of The City Corporation of Calicut v. Thachambalath Sadasivan (AIR 1985 SC Court 756), Gasket Civil Appeals No.1113 to 1155 of 2017 etc. -: 27 :- Radiators (Pvt.) Limited v. Employees’ State Insurance Corporation (AIR 1985 SC 790), The Hinger-Ramper Coal Co. Ltd v. The State of Orissa & Others (AIR 1961 SC 459), Municipal Corporation of Delhi v. Mohd. Yasin (AIR 1983 SC 617), Sudhindra Thirtha Swamiar v. The Commissioner for Hindu Religious & Charitable Endowments, Mysore (AIR 1963 SC 966) and Jaora Sugar Mills (Pvt.) Limited v. The State of Madhya Pradesh (AIR 1966 SC 416). 19. Under the Constitution it is the prerogative of the legislature to raise revenue for the government on matters that fall within its legislative competence. The legislature enjoys the privilege to identify the base of the levy i.e. those upon whom the incidence of the levy would fall and also determine the quantum to be charged from them, which could either be at a fixed rate or ad valorem. Under our Constitution the legislature can levy taxes as well as fees. As GIDC Act, 2015 has been enacted by the Parliament as a fee-levying enactment, we deem it appropriate to briefly discuss the legal concept of such enactments. 20. There are two kinds of fee-imposing legislative enactments which have been defined in various judicial pronouncements, both from our as well as foreign jurisdictions. One is based purely on the principle of quid pro quo i.e. a charge is payable for rendering a specific service or extending a specific privilege which the payers can avail subject to the conditions that may be attached to it. In other words, it can be called as ‘fee-simplicitor’. In such an enactment there is direct and immediate correlation in absolute terms between the service that is rendered and the fee that is charged for it. The other kind of a fee-levying legislation is where Cess is imposed as a compulsory exaction in the same manner where taxes are imposed with the distinction that it is imposed for achieving a specific purpose promised in the enactment itself which when realized would bring some advantage or benefit for the payers in future. It can be described as ‘purpose specific’ and in many judicial pronouncements have been termed as ‘Cess-fee’. In such a form of levy, the specified purpose is pre-committed to the payers before the revenue is collected under the legislation. To quote a few examples, Cess is imposed to meet the extraordinary Civil Appeals No.1113 to 1155 of 2017 etc. -: 28 :- costs involved in providing infrastructure such as construction of dams or for importing oil or gas from abroad through pipelines or to build farm to mill roads in order to facilitate marketing of the agricultural produce or for conducting research and development in some specialized field. In such a form of levy the rule of quid pro quo does not exist in the same sense as it exists in a case where an existing service is rendered or a privilege is extended directly to the payer for a fee. What needs to be taken into consideration is whether the enactment has promised some benefit or advantage for the payers to be made available in future by utilizing the revenue, making it more akin to a fee then a pure revenue raising measure like taxes in general are imposed with no precondition attached for their spending. In a case from the Indian jurisdiction cited by one of the counsel of the appellants reported as Hinger-Rampur Coal Co. Ltd and others V. The State of Orissa (AIR 1961 SC 459) the Supreme Court of India in paragraphs 9 and 10 while discussing a fee-imposing enactment observed as follows: ‘If specific services are rendered to a specific area or to a specific class of persons or trade or business in any local area, and as a condition precedent for the said services or in return for them cess is levied against the said area or the said class of persons or trade or business, the cess is distinguishable from a tax and is described as a fee. 21. In the case of Sona Chandi Oal Committee vs. State of Maharashtra (AIR 2005 SC 635) the Indian Supreme Court while describing fee based levy observed as follows: ‘……… The levy does not cease to be a fee merely because there is an element of compulsion or coerciveness present in it, nor is it a postulate of a fee that it must have a direct relation to the actual service rendered by the authority to each individual who obtains the benefit of the service. Quid pro quo in the strict sense was not always a sine qua non for a fee. All that is necessary is that there should be a reasonable relationship between the levy of fee and the services rendered and it is not necessary to establish that those who pay the fee must receive direct or special benefit or advantage of the Civil Appeals No.1113 to 1155 of 2017 etc. -: 29 :- services rendered for which the fee was being paid. It was held that if one who is liable to pay, receives general benefit from the authority levying the fee, the element of service required for collecting the fee is satisfied.’ 22. Then in the case of State of West Bengal v. Kesoram Industries Limited (AIR 2005 SC 1646) the Indian Supreme Court in paragraph 145 of its judgment observed as under: ‘……. The impugned cess can, therefore, be justified as a fee for rendering such services as would improve the infrastructure and general development of the area, the benefits whereof would be availed even by the stone-crushers. 23. Barrister Mian Bilal has placed reliance on the case of M/s. Gasket Radiators Pvt. Ltd. v. Employees’ State Insurance Corporation and another (AIR 1985 SC 790) wherein it has been held as under:- “Merely because the benefits to be received are postponed, it cannot be said that there is no quid pro quo. It is true that ordinarily a return in praesenti is generally present when fee is levied but simultaneity or contemporaneity of payment and benefit is not the most vital or crucial test to determine whether a levy is a fee or not. In fact, it may often happen that the rendering of a service or the conferment of a benefit may only follow after the consolidation of a fund from the fee levied. Hospitals, for instance, cannot be built in a day nor medical facilities provided right from the day of the commencement of the scheme. It is only after a sufficient nucleus is available that one may reasonably expect a compensating return. The question of how soon a return may be expected or ought to be given must necessarily depend on the nature of the services required to be performed and benefits required to be conferred.” Civil Appeals No.1113 to 1155 of 2017 etc. -: 30 :- 24. The basic difference between the enactment where fee- simplicitor is imposed and where Cess-fee is imposed is that in the former a service or a privilege is made available to the payer directly on the strict principle of quid pro quo whereas in the latter case, the declared purpose comes with a promise to bring some benefit or advantage in future which is basically meant for its payers. Such benefit or privilege once made available on the ground may be availed by others as well but that would not change the status of such fee-levying enactment. It would remain a specie of fee-levying enactment in contradistinction to tax-levying enactment in which no specific purpose or specific service needs to be disclosed by the legislature in order to justify its imposition. 25. When Cess as a fee is levied to meet an earmarked financial exigency spelt out in an enactment, it preserves the levy for such purpose only even with the change in the government setup. It cannot be levied as a general revenue collecting tool and the government would not be justified to collect it if the funds are diverted to some other expenditure. So it is like a ‘promised spending’ to be applied to the specific purpose described in the enactment. Hence, in order to remain as a fee-levying enactment, the purpose for which the Cess is to be charged should be well spelled out and defined in the enactments as narrowly as possible lest it may convert it into a tax-levying enactment. The proceeds of Cess should be clearly identifiable in the accounts by using separate accounting codes so that its collection and utilization is reconcilable with the purposes stated in the enactment. A correlation between the revenue collected and the expenditure incurred for the promised specific purpose should always be maintained. In this manner the earmarked levy also provides information on the amount collected and spent. This also inculcates confidence in the payers as it contains the promise that the revenue would be utilized for the specific purpose only for which it was collected and they would have a claim to transparency and accountability of the utilization of the revenue so collected. They can claim that the revenue cannot be utilized for any other purpose other than for which they have been charged. When the revenue can only be utilized for the purpose promised in Civil Appeals No.1113 to 1155 of 2017 etc. -: 31 :- the fee-levying enactment then in that sense the levy could also be regarded as a temporary levy. Once the purpose for which it was imposed stands served, the justification for its imposition also comes to an end. The collection of Cess therefore should be based on some calculation keeping in view the funding requirements and as and when the purpose is achieved, the government loses it right to collect Cess regardless of the fact that the enactment continues to remain in force. 26. After discussing the two kinds of fee-levying enactments, we shall now proceed to examine whether the GIDC Act, 2015 is a fee or tax-levying enactment and whether it was legislated within the legislative competence of the Parliament. 27. The counsel for the appellants in support of their argument that the Cess levied under GIDC Act, 2015 is a tax, basically made its comparison with such fee-levying enactments where the principle of quid pro quo was the only consideration i.e. comparison was made with service specific enactments describable as ‘fee- simplicitor’. The controversy in the present case is comparable with the enactments that impose fee for a specific purpose that is promised to be achieved for the benefit of the payers in future i.e. a category described in various judicial pronouncements as ‘Cess- fee’. In Durrani Ceramics case also it was held that practically the Federal Government has demonstrated that GIDC Act, 2011 was a fee imposing enactment, which for its object and purpose was no different from GIDC Act, 2015. In paragraph 22 of Durrani Ceramics case it was observed ‘……. Similarly, in the Annual Budget Statement (Federal Budget 2013-14) that carries a similar worded preface, 'Gas Infrastructure Development Cess' has again been listed at C03916 as Non-Tax Revenue. Thus on the Government's own showing, as reflected in the Annual Budget, GIDC is not a 'tax'. No argument has been advanced on behalf of the appellants to explain away the categorization of GIDC as Non-Tax Revenue by the Government in the Annual Budget… . The above determination is sufficient to hold that being a 'fee' the same could not have been imposed through a money bill and on this score the levy was liable to be struck down.’ Thus what invalidated the GIDC Act, 2011 in Civil Appeals No.1113 to 1155 of 2017 etc. -: 32 :- Durrani Ceramics case, as is evident from its paragraphs 22 was that GIDC Act 2011 being a fee-levying enactment its bill could not have been introduced in the National Assembly as a Money Bill under Article 73 of the Constitution. This is precisely the ratio of Durrani Ceramics case which is evident from its concluding paragraph 45 also. 28. Keeping in mind the above legal infirmity with which the legislative process suffered in the legislation of GIDC Act, 2011 which led this Court in Durrani Ceramics Case to declare it invalid, the legislature introduced the bill of GIDC Act, 2015 under Article 70 of the Constitution which was passed by both the houses of the Parliament as a fee-levying enactment. By recasting the GIDC Act, 2015 as a fee-levying instead of tax-levying enactment the constitutional requirements that lacked in the GIDC Act, 2011 were met. This Court in several cases has recognized the right of the legislature to re-enact a law on the same subject, which on account of legal infirmities in its enactment process had been declared invalid by a Court of law, by removing the causes that led to its invalidity. The legislature is also competent to make the re- enacted law applicable retrospectively in order to bind even the past transactions that had been declared invalid. In the case of Molasses Trading & Export (Pvt.) Limited Vs. Federation of Pakistan (1993 SCMR 1905) this Court at page 1920 held as follows:- "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 statute. It has been held that when a legislature intend 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 take place effectively. It will not be sufficient merely to pronounce in the statute by means of a non-obstinate clause that the decision of the Court shall not bind the authority, 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 Civil Appeals No.1113 to 1155 of 2017 etc. -: 33 :- 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 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 fiat' make the new meaning biding upon Court. It is in one of these ways that the Legislature can neutralize the earlier decision of the Court. The Legislature has within the bound of the Constitutional Limitation the power to make such a law and give it retrospective effect so as to bind even past transaction. In ultimate analysis therefore a 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." 29. In the case of Mamukanjan Cotton Factory Vs. Punjab Province (PLD 1975 SC 50) this Court at pages 53-54 held as follows:- “Mr. A. K. Brohi, appearing in support of these two petitions, frankly conceded, that he did not find it possible to question the vires of the validating Ordinance on the grounds canvassed in the High Court. With the permission of this Court, learned counsel, however, attacked the vires of the Ordinance and the resultant action of the Provincial Government on a fresh ground. His argument in nutshell was that the validating Ordinance purports to enable the Provincial Government to retain and claim, what according to the judgments of the High Court, the Government could not have at the material time, levied and collected. These judgments are rendered by the High Court, in exercise of its jurisdiction conferred by the Constitution itself. The validating Ordinance on the other hand, is sub-constitutional legislation, which according to learned counsel cannot undo or Civil Appeals No.1113 to 1155 of 2017 etc. -: 34 :- destroy, what he described as the "end product" of the Constitutional jurisdiction. The argument, in my opinion, is without substance and which ii accepted would indeed lead to startling results. It would strike at the very root of the power of Legislature, otherwise competent to legislate on a particular subject, to undertake any remedial or curative legislation after discovery of defect in an existing law as a result of the, judgment of a superior Court in exercise of its constitutional jurisdiction. The argument overlooks the fact, that the remedial or curative legislation is also "the end product" of constitutional jurisdiction in the cognate field. The argument if accepted, would also seek to throw into serious disarray the pivotal arrangement in the Constitution regarding the division of sovereign power of the State among its principal organs; namely, the executive, the Legislature and the judiciary each being the master in its own assigned field under the Constitution. The argument of learned counsel also conveniently overlooks string of cases, in which the vires of the remedial legislation, competently made, was upheld by this Court, notwithstanding the earlier judgments of the Superior Courts, in exercise of their constitutional jurisdiction, to the contrary effect. The foremost and exactly in point among these cases is the judgment in Dossa Ltd. v. The Province of the Punjab, in which as in these cases, the vires of the validating Ordinance of 1971, was called in question. It was inter alia observed in that case:- "The last contention, namely, that the Ordinance of 1971 could not validate something which was void ab initio in terms of the Act of1949, loses sight of the fact that it is open to the Legislature to confer retrospective operation on the laws made by it. A reference to the provisions of this Ordinance leaves no doubt that the law maker expressly made its operation retrospective with the avowed object of conferring validity on a demand which was not valid under the original Act of 1949. Civil Appeals No.1113 to 1155 of 2017 etc. -: 35 :- 30. To the same effect are the judgments of this Court rendered in the cases of Molasses Trading & Export (Pvt.) Ltd Vs. Federation of Pakistan (1993 SCMR 1905), FECTO Belarus Tractor Ltd Vs. Government of Pakistan through Finance Economic Affairs (PLD 2005 SC 605), Dr. Mobashir Hassan Vs. Federation of Pakistan (PLD 2010 SC 265) and Contempt Proceedings against Chief Secretary, Sindh (2014 PLC (C.S.) 82). 31. In many landmark cases this Court has also held that Courts should lean towards the constitutionality of a legislative enactment instead of destroying it, keeping in view the rules of constitutional interpretations. A seventeen member full Court in paragraph 39 of its judgment rendered in the case Dr. Mobashir Hassan Vs. Federation of Pakistan (PLD 2010 SC 265) in paragraph 39 stated as follows:- ‘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 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 than be destroyed and the Court must lean in favour of upholding the constitutionality of legislation, keeping in view that the rule of Civil Appeals No.1113 to 1155 of 2017 etc. -: 36 :- 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."’ 32. As to the legislative competence of the Parliament to pass the GIDC Act, 2015 as a fee-imposing enactment, in a case from the Indian jurisdiction reported as Ujagar Prints V. Union of India and others (AIR 1989 SC 516) cited by one of the counsel of the appellants the Indian Supreme Court in paragraph 23 while discussing the application of legislative entries to an enactment observed that entries to the Legislative Lists are not the source of legislative power but are merely topics of fields of legislation and must receive a liberal construction inspired by a broad and generous spirit and not in a narrow pedantic sense. In paragraph 25 it was further observed that if a legislation purporting to be under a particular legislative entry is assailed for lack of legislative competence, the State can always show that the law was supportable under any other entry within its legislative competence. In the case of Elahi Cotton Mills Ltd. v. Federation of Pakistan (PLD 1997 SC 582) relied upon by one of the appellants’ counsel this Court held that the entries in the Legislative List of the Constitution are not powers of legislation but only fields of legislative heads and allocation of the subjects to the lists is not by way of scientific or logical definition but by way of mere simple enumeration of broad catalogue. 33. The provision of the Constitution that enables the legislature to legislate GIDC Act, 2015 is Entry No.54 of Part I of the Federal Legislative List contained in the Fourth Schedule. This entry states ‘Fees in respect of any of the matters in this Part, but not including fees taken in any court.’ When we glance through the entries of Part I of the Federal Legislative List in order to see which specific entry enables the Parliament to cover the subject stated in the GIDC Act, 2015, we find Entry No.27. It provides ‘Import and export across customs frontiers as defined by the Federal Government, inter-provincial trade and commerce, trade and commerce with foreign countries; standard of quality of goods to be exported out of Pakistan’. This entry, inter alia, covers legislation that relates to Civil Appeals No.1113 to 1155 of 2017 etc. -: 37 :- subjects of import into Pakistan and trade with foreign countries and the mode through which natural gas can be cheaply and efficiently imported from nearby countries where it is more than sufficient for their needs is through overland pipeline. This is exactly the purpose and object of the GIDC Act, 2015 as reflected by its Section 4 which provides that the revenue that is to be generated from Cess shall be utilized for facilitating import of natural gas into Pakistan through two separate transnational pipelines and for ancillary projects. It states ‘The cess shall be utilized by the Federal Government for or in connection with infrastructure development of Iran-Pakistan Pipeline Project, Turkmenistan-Afghanistan-Pakistan-India (TAPI) Pipeline Project, LNG or other ancillary projects.’ For such purpose trade agreements have also been executed with Iran and Turkmenistan separately. In addition to this Section 4 of the GIDC Act, 2015 also provides that the Cess was required for the purposes of LNG which under a trade agreement with Qatar is being imported on ships and after its discharge at the port of Karachi and gasification, is planned to be transported upcountry through a pipeline project named ‘North- South pipeline’. From this it has become evident that the whole purpose of enacting GIDC Act, 2015 was to facilitate import of natural gas, a very important source of energy from the nearby countries under trade agreements executed with them. The fee imposed under the GIDC Act, 2015 is clearly intended to facilitate import into Pakistan natural gas on the basis of trade agreements executed with foreign countries which acts clearly fall within the ambit of Entry No. 27 of Part I of the Federal Legislative List contained in the Fourth Schedule to the Constitution. 34. The industrial and commercial consumers of natural gas of this country, from whom Cess is being collected, consume about 76% of the total supply of natural gas, which fact was also brought to the notice of this Court in the Durrani Ceramics case. They would be mainly benefited once the promised projects are completed. It does not matter if domestic consumers of natural gas would also be benefitted. Mr. Salman Akram Raja had argued that as his client is getting sufficient supply of natural gas from the wellhead located very near to its installation therefore the imported Civil Appeals No.1113 to 1155 of 2017 etc. -: 38 :- gas would be of no benefit for his client who may be exempted from the levy of Cess as there exists no quid pro quo. In a legislative enactment where there is an element of compulsion, which can be even in an impost such as Cess-fee, the payer does not enjoy the privilege of avoiding the obligation at his choice. If such a plea is accepted then every consumer would be able to take it and that would virtually nullify the Act itself at the choice of the payers. In the case of Hinger-Rampur Coal Co. Ltd. V. The State of Orissa (AIR 1961 SC 459) the Indian Supreme Court in its paragraph 10 has observed:- ‘There is, however, an element of compulsion in the imposition of both tax and fee. When the Legislature decides to render a specific service to any area or to any class of persons, it is not open to the said area or to the said class of persons to plead that they do not want the service and therefore they should be exempted from the payment of the cess.’ 35. It was also argued that in Section 3(1) of the GIDC Act, 2015 the terms ‘levied’ and ‘charged’ are used which demonstrate that it is a tax imposing enactment and not ‘fee’. The learned counsel attempted to strengthen this argument by relying on the stand which the Federal Government in Durrani Ceramics case took that the levy in the GIDC Act, 2011 was a tax-imposing enactment. When the terms like ‘levy’ or ‘charge’ are used in any revenue raising enactment, it does not mean that it cannot be a fee imposing enactment. A plea taken by a party on a point of law which was not accepted by a Court in an earlier round of litigation cannot be used against such party which on account of such decision has accordingly changed its plea in subsequent legal proceedings. In any case the terms ‘levied’ or ‘charged’ mean ‘to impose by legal authority’. Whether tax is being imposed or a fee, it entirely depends upon the object of the legislation and has nothing to do with the use of such terms. Even in Article 279 of the Constitution the term ‘levied’ is used for tax as well as for fee imposing legislations. So mere use of terms like ‘levied’ or ‘charged’ cannot be made basis to describe a law as tax imposing enactment. As the GIDC Act, 2015 contains a well-defined object meant for Civil Appeals No.1113 to 1155 of 2017 etc. -: 39 :- making future availability of natural gas more convenient and without interruption that would mainly benefit the industrial and commercial consumers which the appellants, the petitioners and the intervenors undeniably are, therefore, in pith and substance the GIDC Act, 2015 is a fee-imposing enactment and use of terms like ‘levied’ or ‘charged’ would not change the object with which it was legislated. 36. It was also argued that in Section 3 (1) of the GIDC Act, 2015 it is stated that Cess shall be levied and charged by the Federal Government which means that Federal Government has been empowered to levy it as and when it so decides which decision is yet to come. It was contended that until the Federal Cabinet so decides and upon such decision the Federal Government issues notification in this behalf, Section 3 (1) would remain inoperative. When an Act of Parliament provides that it will come into force at once then every provision of it becomes enforceable from the day the Act receives the assent of the President unless any provision of the Act itself suggests that it will come into force only when some authority nominated in this behalf so decides or on the happening of an event. No such precondition has been attached to Section 3 (1) for its coming into operation. It clearly states that the Cess shall be levied and charged by the Federal Government from the gas consumers of the companies which are listed in the First Schedule and such companies shall be responsible for billing and collection and making onward payment of the Cess so collected from the gas consumers to the Federal Government. When such is the unqualified mandate of Section 3(1) of GIDC Act, 2015 and the responsibility of billing and collection has already been cast upon the companies listed in the First Schedule from the day when it comes into effect then the Cess becomes chargeable from that very day without leaving it to the Federal Government to first decide when to bring Section 3(1) into operation. On the other hand, where the legislature intends to leave a matter for the Federal Government to decide before it is given effect to then it specifically states so in the law itself. This can be seen from the contents of Section 7 of the GIDC Act, 2015 which provides ‘The Federal Government may, by notification in the official Gazette, make such Civil Appeals No.1113 to 1155 of 2017 etc. -: 40 :- amendments in the First Schedule as it deems fit.’ No such precondition is contained in Section 3 (1) of the GIDC Act, 2015. 37. It was also argued that the GIDC Act, 2015 is discriminatory as the domestic consumers of natural gas have been excluded from the levy. From the contents of Section 3 (1) of the GIDC Act, 2015 it is evident that the incidence of Cess falls only on commercial and industrial concerns. In our opinion this may have been for the reason that the Cess which the industrial and commercial concerns pay becomes part of the cost of the goods which they sell or the cost of the services they render and thus is ultimately borne by the buyers of their goods and services. Same is the case with the consumers of CNG. The burden of the Cess payable by the owners of CNG stations on their purchases of natural gas gets factored in towards fixation of sale price of CNG. Every industrial and commercial entity using natural gas for its business activity is entitled to claim the burden of Cess as their business expense, being part of the cost of their goods sold or services rendered, and get it adjusted against their business profits. They must have already done so in their books of account and the annual returns of their income must have been filed before the Income tax authorities accordingly. Thus the Cess under GIDC Act, 2015 has been levied only on those consumers of natural gas who on account of their industrial or commercial dealings pass on its burden to their customers/ clients. This is not the case with the domestic consumers of gas as the question of passing on the burden in their case obviously does not arise. For this reason, the domestic consumers may have been treated an altogether different class of gas consumers and consciously excluded from the levy of Cess, which reason appears to be very sound. This could be the only distinction on the basis of which the domestic consumers were not burdened with the incidence of Cess under GIDC Act, 2015. Needless to point out that the domestic consumers are indirectly burdened with the incidence of Cess in a way that whatever product or service they buy/avail from an industrial or commercial enterprise or purchase CNG from a CNG station, the element of cost of Cess having already been factored in the price of their purchases, it ultimately passes on to them. So looking from Civil Appeals No.1113 to 1155 of 2017 etc. -: 41 :- that angle too, the domestic consumer or an ordinary person becomes the ultimate payer of the Cess that is levied on industrial or commercial concerns who consume natural gas for their business activity. What emerges from this is that domestic consumers of natural gas being treated as a distinct class of consumers from industrial and commercial consumers, no discrimination in favour of domestic consumers emerges on account of their exclusion from the levy of Cess under GIDC Act, 2015. 38. Whatever Cess has been collected right from the day when when GIDC Act, 2011 came into force has been accounted for by the Federal Government in its annual accounts recording it under separate code numbers and is thus identifiable separately from the other revenues of the Federal Government. This would facilitate in seeking information on the amount collected as against the amount that is going to be spent for the purposes promised in the GIDC Act, 2015. Thus a correlation between the revenue collected and the expenditure which is going to be incurred for the promised specific purpose can be maintained. It matters not if the revenue so collected forms part of the Federal Consolidated Fund as it is the mandate of Article 78 of the Constitution itself that all revenues of the Federal Government has to made part of Federal Consolidated Fund. 39. The background of the legal history of the controversy in question can be traced back to 2011, when the levy under GIDC Act, 2011 was challenged before the Peshawar High Court which in 2013 declared the levy as ultra vires the Constitution and struck down the GIDC Act, 2011. The Islamabad High Court followed the same course in its judgment in 2014. As a result of these decisions, the matter came before this Court in the case which has come to be known as Durrani Ceramics case. This Court in its judgment refused to interfere with the decision rendered by the Peshawar High Court and declared the GIDC Act, 2011 as unconstitutional, holding that the levy in question was in fact a fee and not a tax, hence, it could not have been imposed through a Money Bill. The case came before this Court again in review, which Civil Appeals No.1113 to 1155 of 2017 etc. -: 42 :- was dismissed in 2015. Later, the Government enacted the GIDC Act, 2015 as a fee imposing enactment. The constitutional validity of the said Act was also challenged before the High Courts. The Sindh High Court declared the levy unconstitutional vide its judgment dated 26.10.2016 whereas the Peshawar High Court upheld the constitutionality of the new Act vide its judgment dated 31.05.2017. While several other similar matters awaited adjudication before other High Courts issue came before this Court for a second time, in which we vide order dated 22.10.2019 allowed the parties concerned to join the present proceedings as intervenors so that they can have a chance to assist us in the present proceedings and get an opportunity to present their version of the case before us. If we look at this matter in retrospect, there has been continuous litigation pertaining to the constitutional validity of the GIDC cess right from 2011 till July 2020 when we are finally deciding the controversy in these proceedings. Apart from continuous litigation on the issue, we were also told that due to international sanctions on Iran, the response to international tender for EPC contract was very poor as no contractor was willing to undertake the project. On TAPI it is stated that land acquisition proceedings is at an advance stage however work on laying of the pipeline could not start in Afghanistan on account of the insurgency in Afghanistan. It is also stated at the bar that now there are signs that work on laying the pipeline in Afghanistan may commence soon as the final draft of TAPI Project Land Management Law is on final review of the Government of Afghanistan. Hence the delay in the commencement of work on laying the pipelines on account of continuous proceedings in the High Courts as well as before this Court and the levy under both the enactments having been struck down as unconstitutional in the year 2013 and 2016, geopolitical situations in the neighboring countries which are beyond the control of the Federal Government. This means that the projects have not been deliberately abandoned and there is also no material on record to doubt the intentions of Federal Government in this behalf. The Executive, therefore, cannot be blamed for not laying down the pipelines in question. In such a situation where work has not yet started on the laying of the pipelines and no contract has been Civil Appeals No.1113 to 1155 of 2017 etc. -: 43 :- awarded it would also be premature to ask for laying any report before the National Assembly. 40. At this stage, we like to refer to Entry No.51 of Part I of the Federal Legislative List contained in the Fourth Schedule to the Constitution. It reads ‘Taxes on mineral oil, natural gas and minerals for the use in generation of nuclear energy.’ As regards generation of nuclear energy is concerned, the scientific reality is that it originates from splitting of atoms of the uranium which generates heat. This process of splitting the atoms of uranium is called fission. The heat so generated helps in producing steam which is then used to operate turbines to generate electricity. As nuclear energy is produced only through the process of fission, fuels such as mineral oil or natural gas cannot be used for such purpose. Resultantly, no greenhouse gas emissions are produced while generating nuclear energy, hence it is also a clean source of energy. There are several other primary sources of generating energy such as fossil fuels like coal, petroleum, natural gas and sources like hydroelectric, solar and wind. None can be used as nuclear fuel to generate nuclear energy except uranium and its by-product plutonium. When such is the scientific reality then mineral oil and natural gas appearing in Entry No.51 on which the process of fission cannot apply to generate nuclear energy are to be read disjunctively, as both are sources of energy other than nuclear energy. 41. While discussing the scope of Entry No.51 of Part I of the Federal Legislative List contained in the Fourth Schedule to the Constitution which was also examined in Durrani Ceramics case, we feel the need to highlight the fact that prior to the framing of the 1956 Constitution the subject of mineral development was under the exclusive domain of the Federal Government for legislation which was administered under the federal law i.e. ‘The Regulation Mines and Oil Fields and Mineral Development (Government Control) Act, 1948. Hence legislation with regard to all minerals before 1956 Constitution came into force, fell within the domain of the Federal Government. Under the 1956 Constitution only two sources of energy, the mineral oil and natural gas were exclusively retained by the Federal Legislature as is evident from its Entry No.15 and iron, coal and other minerals were placed under Entry 12 of the Part II of the Civil Appeals No.1113 to 1155 of 2017 etc. -: 44 :- Concurrent List and under Entry No.41 regulation of mines and mineral development, excluding those mentioned in the Federal and Concurrent Lists fell in the Provincial List. Now for the first time an item described as ‘mineral resources for generation of nuclear energy’ was added in the 1962 Constitution under Entry No. 23 of the Federal Legislative List and mineral oil and natural gas were listed under Entry No.24 of the Federal Legislative List. This also recognizes the fact that mineral oil and natural gas though being sources of energy are distinct from the source that generates nuclear energy. In the 1973 Constitution mineral oil, natural gas and minerals for use in generation of nuclear energy were clubbed together under Entry No.51 for the simple reason that all three denote a common feature i.e. these are all sources of energy which the Federal legislature continued to retain for itself for legislation. Placing all three items under one and the same Entry is understandable. However, mere mention of all three sources of energy in one and the same entry does not mean that scientific reality has changed and the first two sources of energy i.e. mineral oil and natural gas can now also be used to generate nuclear energy. In the Durrani Ceramics case all items contained in Entry No.51 were read conjunctively, meaning thereby that Federal Government can levy tax on natural gas and mineral oil only if these sources of energy can be used to generate nuclear energy. It appears that no proper assistance on scientific lines was rendered by the law officers to this Court during the hearing of the Durrani Ceramics case hence the scientific fact that it was not possible to generate nuclear energy from mineral oil and natural gas, as these sources cannot be used as nuclear fuel was not taken into consideration. In view of the fact that nuclear energy can only be generated from uranium and its by-product plutonium and not from natural gas or mineral oil, the National Assembly was fully competent to impose tax on natural gas through a Money Bill on the strength of Entry No.51 of the Federal Legislative List. However, in these proceedings we leave this aspect at that as the law which was the subject matter of the controversy in Durrani Ceramics case is not in existence anymore and in light of decision in that case, the Federal Government also changed its stance and opted to impose fee. 42. From what has been discussed above it can be concluded Civil Appeals No.1113 to 1155 of 2017 etc. -: 45 :- that the whole purpose of enacting GIDC Act, 2015 was to facilitate import into the country a very important source of energy i.e. natural gas / LNG from nearby countries in order to meet the ever expanding energy needs of the country as our own resources of energy are fast depleting and the cheapest way to import it is through overland transnational pipelines. The supply of imported LNG to various parts of the country after its import on ships through trans-provincial pipeline is also a project of the Federal Government. The incidence of the cost involved in doing so falls on the industrial and commercial consumers whose consumption account for more than three-fourth of the total supply of natural gas, which fact was also brought to the notice of this Court in Durrani Ceramics case. Such consumers, apart from being major beneficiaries of the imported gas, would on account of their business activity pass on the burden to their clients/customers being part of the cost of their goods or services which they sell to their customers / clients. The object which the Parliament has promised in the GIDC Act, 2015 is clearly ‘purpose based’ which is distinctly defined and carries with it an element of quid pro quo, making it a fee-imposing enactment instead of a pure revenue raising measure like taxes in general are imposed with no precondition attached for their spending. After seeing the purpose of the enactment clearly and the fact that its revenue is duly accounted for and has also not been diverted to any other use, we hold that the imposition of Cess under GIDC Act, 2015 is not a tax-imposing enactment. It was passed through a bill moved in the Parliament under Article 70 of the Constitution deriving its legislative competence from Entry 54 read with the enabling Entry No. 27 of Part I of the Federal Legislative List contained in the Forth Schedule to the Constitution thereby curing the defect which lead to the invalidation of the GIDC Act, 2011 in Durrani Ceramics case. The provisions of Section 8 of the Act, which give retrospective effect to the charge and recovery of ‘Cess’ levied from the year 2011 are also declared to be valid being within the legislative competence of the Parliament. Exercise of such a power has been recognized by this Court in the Case of Mamukanjan Cotton Factory Vs. Punjab Province (PLD 1975 SC 50). The levy imposed under Gas Infrastructure Development Cess Act, 2015 is Civil Appeals No.1113 to 1155 of 2017 etc. -: 46 :- therefore in accordance with the provisions of the Constitution. However, keeping in view the ground realities discussed in the preceding paragraph and the fact that around 295 billion rupees have already been collected towards Cass-revenue and together with the outstanding amount the total sum by the end of this month would be in the vicinity of seven hundred billion rupees, which is more than what is the estimated cost of the projects mentioned in Section 4 of the GIDC Act, 2015, we are constraint to issue following directions: - (i) From the date of this judgment, we restrain the Federal Government from charging Cess which power of the Federal Government shall remain suspended until the Cess-revenue collected and that which is accrued so far but not yet collected is expanded on the projects listed in Section 4 of the GIDC Act, 2015. (ii) In the remaining period of the financial year 2020-21 while considering fixation of sale price of CNG, OGRA shall not take into consideration the element of Cess under GIDC Act, 2015 as one of the cost of sale of GNG. (iii) As all industrial and commercial entities which consume gas for their business activities pass on the burden to their customers / clients therefore all arrears of ‘Cess’ that have become due upto 31.07.2020 and have not been recovered so far shall be recovered by the Companies responsible under the GIDC Act, 2015 to recover from their consumers. However, as a concession, the same be recovered in twenty- four equal monthly installments starting from 01.08.2020 without the component of late payment surcharge. The late payment surcharge shall only become payable for the delays that may occur in the payment of any of the twenty-four installments. (iv) The Federal government shall take all steps to commence work on the laying of the North-South pipeline within six months and on TAPI pipeline as soon as its laying in Civil Appeals No.1113 to 1155 of 2017 etc. -: 47 :- Afghanistan reaches the stage where the work of laying pipeline on Pakistan soil can conveniently start and on IP pipeline as soon as the sanctions on Iran are no more an impediment in its laying. In case no work is carried out on North-South pipeline within the prescribed time and for laying any of the two other major pipelines (IP and TAPI) though the political conditions become conducive, the purpose of levying Cess shall be deemed to have been frustrated and the GIDC Act, 2015 would become permanently in-operational and considered dead for all intents and purposes. 43. Subject to the directions contained herein above, all these appeals and connected petitions are dismissed. In the light of this decision and the directions contained therein all listed applications also stand disposed of. JUDGE JUDGE I with respect disagree with the reasoning and conclusion of the majority judgment and have therefore appended my own judgment separately. JUDGE Islamabad Approved For Reporting Announced on 13.08.2020 by Justice Mushir Alam Khurram Civil Appeals No.1113 to 1155 of 2017 etc. -: 48 :- Syed Mansoor Ali Shah, J.- 44. I have had the privilege of reading the judgment authored by my learned brother Faisal Arab J. with which my learned brother Mushir Alam J. has concurred (“Majority Judgment”). I, with respect, do not agree with the reasoning and conclusion of the Majority Judgment. I look at the issue somewhat differently. The principal question that concerns me is whether a fiscal levy imposed for a service to be rendered – a service dependent on the completion of long-term multinational infrastructural projects tied to the vagaries of international politics, exist without a reasonable timeline ? Is reasonable time, therefore, an essential constituent of quid pro quo? Can a fee levying legislation, resting on reciprocity, impose a one sided obligation on the gas consumers to pay the levy while providing no timeline nor any consequences for failure to deliver the proposed service ? I venture to examine the constitutionality of the impugned levy (GIDC) in this background. 45. Constitutionality and legality of Gas Infrastructure Development Cess ("GIDC”) imposed under the Gas Infrastructure Development Cess Act, 20151 ("Act") has come up for our consideration. Two provincial High Courts have expressed contrary views; Sindh High Court has struck down the levy and the Act, as being unconstitutional, vide judgment2 dated 26.10.2016, whereas, Peshawar High Court has upheld the levy, vide judgment3 dated 31.05.2017. Matters are still pending in other Provincial High Courts. 46. GIDC is levied and charged4 by the Federal Government from the gas consumers5, other than the domestic sector consumers. According to the Act, GIDC is to be utilized6 by the Federal Government for infrastructure development of Iran Pakistan Pipeline Project (IP), Turkmenistan-Afghanistan-Pakistan-India (TAPI) Pipeline Project, LNG or other ancillary projects. 1 ACT IV of 2015 which received the assent of the President on 21.05.2015 and was published in the Gazette of Pakistan Extraordinary, part-1 on 23.05.2015. 2 M/s Century Paper & Board Mills Ltd and others vs. Federation of Pakistan and others. 3 Passed in W.P 2178/2015, etc titled M/s Umair Steel vs. Federation of Pakistan and others, etc. 4 section 3 of the Act 5 Defined in section 2(a) of the Act. 6 Section 4 of the Act. Civil Appeals No.1113 to 1155 of 2017 etc. -: 49 :- 47. As a matter of background almost similar Cess (GIDC) was earlier imposed under The Gas Infrastructure Development Cess Act, 2011 (“Act, 2011”).7 Considering it to be a “tax” under item no.51 of Part I of the Federal Legislative List of the Constitution8, it was passed as a Money Bill under Article 73 of the Constitution. It was soon challenged after its promulgation by the gas consumers, primarily on the grounds; that GIDC was infact a Fee and could not have been introduced through a Money Bill bypassing the bicameral legislative procedure provided under Article 70 of the Constitution; and that the Parliament did not enjoy the legislative competence to impose “Tax” on “natural gas.” 48. Peshawar and Islamabad High Courts struck down the Act, 2011 and declared the levy of GIDC as being unconstitutional in Ashraf Industries (Pvt) Ltd9 and Master Textile Mills.10 Finally, the matter came up before this Court in Durrani Ceramics11. This Court also declared the law unconstitutional on the ground that GIDC under Act, 2011 was not a Tax but a Fee and therefore could not have been passed as a Money Bill. Review filed against the same was also dismissed in Durrani Ceramics -II.12 49. The Gas Infrastructure Development Cess Act, 2015 was promulgated on 21.05.2015 with modifications once again imposing GIDC (Cess) on all the gas consumers other than the domestic sector consumers. It drew its legislative competence from item no. 213 of Part II of the Federal Legislative List. The new Act is substantially a repeat of the previous Act, 2011 except that its legislative routing is through both the Houses of the Parliament in terms of Article 70 of the Constitution. The new legislation does not set out the essential constituents of the new levy (Fee) to show that GIDC is no more a Tax but a Fee. Perhaps the legislature simply 7 ACT No. XXI of 2011. Received the assent of the President on 13.12.2011 and was published for general information in the Gazette of Pakistan Extraordinary on 15.12.2011. 8 Item 51: Taxes on mineral oil, natural gas and minerals for use in generation of nuclear energy. 9 Ashraf Industries (Pvt) Ltd. vs. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Control Secretariat and 3 others (2013 PTD 1732). 10 Master Textile Mills & 275 others vs. Federation of Pakistan & others (PLD 2014 Islamabad 83) 11 Federation of Pakistan through Secretary M/o Petroleum and Natural Resources and another vs. Durrani Ceramics and others (2014 SCMR 1630). [three member bench] 12 Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources and another vs. Durrani Ceramics and others (PLD 2015 SC 354). 13 Item no.2: Mineral oil and natural gas; liquids and substances declared by Federal law to be dangerously inflammable. Civil Appeals No.1113 to 1155 of 2017 etc. -: 50 :- banked on the declaration given in Durrani Ceramics and thought that no additional legislative design was required. 50. The constitutionality and legality of the new Act was challenged before the provincial High Courts in the country. Sindh High Court vide judgment dated 26.10.2016 struck down the levy as being unconstitutional, however, the Peshawar High Court upheld the levy in its judgment dated 31.05.2017. Litigation is still pending in other Provinces, therefore, this bench vide order dated 22.10.2019 had allowed parties in pending matters to join these proceedings as intervenors so that their contention and viewpoint can be heard. The matter has now come up before us for final determination. Grounds of challenge 51. Several legal questions of varying complexities were raised before us in the startling backdrop of this case; the more fundamental and pivotal being; whether the Act imposes a Fee under our constitutional framework, especially when the corresponding service or quid pro quo is to be rendered in some distant future; whether different Cess rates provided in the Second Schedule to the Act are discriminatory; the failure to seek prior approval of the Federal Cabinet before initiating the legislative process of the Act; whether the Parliament can legislate without first allowing Council of Common Interest (CCI) to deliberate on the subject of natural gas which falls in Part II of the Federal Legislative List and without considering its recommendations. And in the absence of any notification and specification of the rates under section 3 of the Act, whether GIDC could be levied and charged; and finally whether the validation provision under section 8 of the Act holds water and GIDC for the period prior to the Act was lawfully charged. I deal with the constitutionality of the Fee imposed and therefore some of the questions raised are not required to be answered in this case. 52. I have had the opportunity of hearing the learned counsel for the parties and the intervenors extensively over days. I have examined the record of the case; the current status of the infrastructure development gas projects on the ground; the recent Civil Appeals No.1113 to 1155 of 2017 etc. -: 51 :- trends in the sub-continental comparative jurisprudence on the subject of Tax and Fee; and tried to understand the contemporary concept and meaning of Fee (with future service), now used for raising public finance for large infrastructure projects and have examined its constitutionality and legality under our living Constitution. OPINION Concept of Fee 53. Summarizing the sub-continental jurisprudence14 on Tax versus Fee, I see that normatively, theoretically and legislatively three prominent tasks have been entrusted to taxation, namely; revenue augmentation, redistribution of wealth in society and regulatory function to ensure expected economic behaviour. Fee, on the other hand, has a narrower scope and is premised on a corresponding service in return or quid pro quo. While tax is 14 See: Haji Dossa Limited, Karachi vs. Province of Punjab through Collector, Sahiwal and others (1973 SCMR 2), Workers' Welfare Funds, M/O Human Resources Development, Islamabad through Secretary and others vs. East Pakistan Chrome Tannery Pvt. Through G.M. Finance Lahore and others (PLD 2017 SC 28), Sheikh Muhammad Ismail & Co. Ltd., Lahore vs. The Chief Cotton Inspector, Multan Division, Multan and others (PLD 1966 SC 388), Pakistan Flour Mills Association and another vs. Government of Sindh and others (2003 SCMR 162), Hirjina Salt Chemicals (PAK.) Ltd. vs. Union Council, Gharo and others (1982 SCMR 522), Noon Sugar Mills Ltd. vs. Market Committee and others (PLD 1989 SC 449), Azad Government of the State of Jammu & Kashmir through Chief Secretary, Azad Kashmir Government, Civil Secretariat, Muzaffarabad vs. Haji Mir Muhammad Naseer and others (1999 PLC (C.S.) 1173), Pakcom Limited and others vs. Federation of Pakistan and others (PLD 2011 SC 44), Collector of Customs and others vs. Sheikh Spinning Mills (1999 SCMR 1402), The Hingir-Rampur Coal Co vs. The State of Orissa (1961 SCR (2) 537), Sreenivasa General Traders vs. State of Andhra Pradesh (AIR 1983 SC 1246), Upaj Mandi Samiti vs. Orient Paper and Industries (1995 RRR (1) 327), Bangalore Development Authority vs. Air Craft Employee Society (2012 (1) JLJR 503), H.H. Sudhundra Thirtha Swamiar and others vs. The Commissioner for Hindu Religious and Charitable Endowments, Mysore and another (AIR 1963 SC 966), Southern Pharmaceuticals and Chemicals, Trichur and others vs. State of Kerala and others (AIR 1981 SC 1863), The Chief Commissioner, Delhi and another vs. The Delhi Cloth & General Mills Co. Ltd. and others (AIR 1978 SC 1181), Calcutta Municipal Corporation and others vs. Shrey Mercantile Pvt. Ltd. and others (AIR 2005 SC 1879), Bhagwan Dass Sood vs. State of Himachal Pradesh and others (AIR 1997 SC 1549), Bangalore Development Authority vs. Air Craft Employee Society (2012 (1) JLJR503), Kewal Krishan Puri and another vs. State of Punjab and others (AIR 1980 SC 1008), Agriculture Market Committee, Rajam and others vs. Rajam Jute and Oil Millers Association, Rajam (AIR 2003 SC 1742), Upaj Mandi Samiti vs. Orient Paper and Industries (1995 (1) RRR 327), The City Corporation of Calicut vs. Thachambalath Sadasivan and others (AIR 1985 SC 756), Kishan Lal Lakhmi Chand vs. State of Haryana (1993 Supp (4) SCC 461), The Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282), The State of West Bengal and another vs. Kesoram Industries Ltd. and others (AIR 2005 SC 1646), Municipal Corporation of Delhi and others vs. Mohd. Yasin (AIR 1983 SC 617) and Gasket Radiators Pvt. Ltd. vs. Employees' State Insurance Corporation and another (AIR 1985 SC 790). Civil Appeals No.1113 to 1155 of 2017 etc. -: 52 :- devoid of quid pro quo, it is a sine qua non for Fee. Tax and Fee both properly belong to the world of public finance.15 54. A tax is a compulsory contribution to the government, imposed in the common interest of all, for the purpose of defraying the expenses incurred in carrying out the public functions or imposed for the purpose of regulation, without reference to the special benefits conferred on the one making the payment.16 As a corollary, tax being instrumental in revenue augmentation, its quantum need not commensurate with costs incurred by such public authority. Further, tax is devoid of any quid pro quo. Even where any benefit seems to flow, in case of tax, it is merely incidental and not primary. In other words, there exists no connection, whether direct and immediate or broad and casual between the contributor of tax and benefits. 55. In a glaring contrast, Fee, is generally defined to be a charge for a special service rendered to individuals by some governmental agency. Ordinarily, Fees are uniform and no account is taken of the varying abilities of different recipients to pay. A Fee may either be regulatory or compensatory. Where a Fee is commensurate with the cost of rendering the service, though not in exact arithmetical equivalence, it is a compensatory Fee. On the other hand a Fee charged to regulate or control, is validly classifiable as regulatory Fee, provided it is not excessive or not dominantly intending to raise revenues for the public authority. Whilst both tax and Fee are compulsory exactions of money by public authority, their real distinction comprise in primarily what is known as quid pro quo test and proportionality of amount test. 56. Accordingly a levy to be identified as Fee must have an element of quid pro quo between the payer and the public authority that imposed it. This quid pro quo or service rendered in return envisages an intimate and immediate relationship between rendition of service and the payer, who is direct beneficiary of such service, on a one-on-one basis. This proximity between the 15 Pathak, Neha: “SLIPPERY SLOPES OF COMPENSATORY TAX AND FEE” – Journal of the Indian Institute 56 16 Martin T Crowe, The Moral Obligation of Paying Just Taxes 12 (Catholic University of American Press, Washington D.C, 1944) Civil Appeals No.1113 to 1155 of 2017 etc. -: 53 :- beneficiaries and services can also be categorized for simplicity as “proximate quid pro quo.17” So the classical approach of Fee comprises the following: a) proximate quid pro quo i.e., rendition of certain services to the payers by government agency which amounts to special benefit/advantage to the payer; b) proportionality i.e., the amount imposed ought to commensurate with cost of services to be rendered; c) specific fund that ensures dedicated spending from an earmarked fund for specific purpose of that service. Merger of proceeds with general revenue to be spent for general purposes was not acceptable; d) primary objective that is to enquire whether the primary purpose of imposing levy is rendition of services and it is not merely incidental to augmentation of revenue. If latter predominates, it acts as negative restriction and the levy will be a tax18. 57. As the economy grew, Fee was imposed to render services to a large class of people or specified sector or area as a whole. In such cases, the relationship between the beneficiary and the services rendered became more generic, broad and remote. This is because such a service is to reach a general class of people or a specified sector or a designated area and not to an individual per se and therefore the service may also extend to free riders who are not the payers of Fee, hence the bond of proximity stands diluted. This shift has also been termed as “remote quid pro quo”19 which is used to describe the situation where services target beneficiaries which is a generic class comprising of a certain free riders but inclusive of payers. The shift from proximate to remote quid pro quo overtime does not mean that the service to be rendered to the payers of Fee would be any different or in any manner less. The scope and depth of service to be rendered depends on the nature of the service. Like in the instant case, the service of continuous and increased supply of natural gas, inspite of being a generic service, extending to a class of gas consumers including those who are not payers of GIDC, must still reach all the industrial gas consumers paying GIDC (Fee). 17 phrase used by Pathak, Neha (supra note 15) 18 supra note 15 19 ibid Civil Appeals No.1113 to 1155 of 2017 etc. -: 54 :- 58. The requisite earmarking of funds stands diluted in subsequent case law. Merely because collections for services rendered or grant of a privilege or license are taken to the consolidated fund of the state and not separately appropriated towards the expenditure for rendering the service is not by itself decisive. 59. With proximate quid pro quo test replaced with remote quid pro quo test and the specific fund test being considered non- determinant factor, the only test that remained untouched from the classical package was proportionality test. This test coupled with primary object test became new determinants of Fee. The modern approach to Fee therefore consists of three point check: (a) Primary object test- whether the plenary objective of the levy is rendition of service to specified class and this service is something other than something merely incidental; (b) Remote quid pro quo test- whether the payer receives a general benefit from the authority imposing levy; (c) Proportionality test - whether there exists a broad and generic co-relationship between services rendered and the amount of Fee charged20. Durrani Ceramics I and II 60. In Durrani Ceramics this Court held that GIDC was not a Tax but a Fee and declared Act, 2011 to be unconstitutional for having been passed as a Money Bill. Relevant extracts are as under:- 19. Upon examining the case-law from our own and other jurisdictions it emerges that the 'Cess' is levied for a particular purpose. It can either be 'tax' or 'fee' depending upon the nature of the levy. Both are compulsory exaction of money by public authorities. Whereas 'tax' is a common burden for raising revenue and upon collection becomes part of public revenue of the State, 'Fee' is exacted for a specific purpose and for rendering services or providing privilege to particular individuals or a class or a community or a specific area. However, the benefit so accrued may not be measurable in exactitude. So long as the levy is to the advantage of the payers, consequential benefit to the community at large would not render the levy a 'tax'. In the 20 ibid. Civil Appeals No.1113 to 1155 of 2017 etc. -: 55 :- light of this statement of law it is to be examined whether the GIDC is a 'tax' or a 'fee'. 20. To recapitulate the 'Cess' collected is to be utilized for specific purposes, namely, development of infrastructure of Iran Pakistan Pipeline Project, Turkmenistan Afghanistan Pakistan India (TAPI) Pipeline Project, LNG or other projects or for price equalization of other imported alternative fuels including LPG. An annual report regarding utilization of the amount so collected is to be regularly placed before the House after three months of the end of each fiscal year (See S. 4 of GIDC Act). The levy therefore is to be utilized only for the purposes mentioned in the GIDC Act. The same is not a common burden for raising revenue generally. The money so collected from the levy is to be utilized for a specific purpose for the advantage and benefit of the consumers of gas. The 'Cess' is basically to be levied on all consumers of gas with certain exemption, mainly for domestic consumers. This exemption is by way of relief to such consumers. Even otherwise the data so provided to us regarding consumption of gas by different sectors shows that the domestic sector consumes only 20.3% of the total gas whereas 76 % of the total gas is consumed by those from whom the 'Cess' is collected (see Pakistan Energy Year Book, 2012. The latter sector has invested in development of the infrastructure for utilization of gas for their respective concerns. As envisaged in section 4 of GIDC Act, the 'Cess' is mainly to be utilized for development of the pipelines from other countries and other similar projects in order to ensure continuous and increased supply of gas to this sector. Undoubtedly other consumers of country as a whole would also benefit from such Projects but the same is inconsequential compared to the advantage that will accrue to the payers. ….. 22. Another formidable argument on behalf of the respondents was based upon the National Assembly for the Financial Years 2012-13 and 2013-14….This Annual Budget Statement along with money bill is to be simultaneously transmitted to the Senate so that it may make recommendations to the National Assembly. Page-6 of Civil Appeals No.1113 to 1155 of 2017 etc. -: 56 :- the Statement contains list of Non-Tax Revenue, which under the Object Code C03916 includes 'Gas Infrastructure Development Cess'. Similarly in the Annual Budget Statement (Federal Budget 2013-14) that carries a similar worded preface, 'Gas Infrastructure Development Cess' has again been listed at C03916 as Non-Tax Revenue. Thus on the Government's own showing, as reflected in the Annual Budget, GIDC is not a 'tax'. No argument has been advanced on behalf of the appellants to explain away the categorization of GIDC as Non-Tax Revenue by the Government in the Annual Budget. This is not a mere accounting procedure as urged by Mr. Salman Akram Raja, Advocate Supreme Court, who in this context had relied upon Sheikh Muhammad Ismail & Co. v. Chief Cotton Inspector Council (supra), but were part of the Annual Budget Statements. As submitted by Mr. Makhdoom Ali Khan, Senior Advocate Supreme Court, the possible reason why the levy has been reflected as Non-Tax Revenue in the Budget was to exclude it from the divisible pool under the National Finance Commission (NFC) Award. The above determination is sufficient to hold that being a 'fee' the same could not have been imposed through a money bill and on this score the levy was liable to be struck down. …. 31. Entry 51 mentions three items, namely 'mineral oil', 'natural gas' and 'minerals' which are followed by the words "for use in generation of nuclear energy". The basic rule for interpretation of statutes is to give the words their ordinary and natural meaning. Deviation from this rule is permissible only when it becomes necessary, for example to avoid or overcome absurdity or render certain words meaningless. This exercise is undertaken when assigning the words their ordinary meaning does not reflect the true intention of the Legislature. By the use of 'and' in between 'natural gas' and 'minerals' in Entry 51, all the three items are to be read conjunctively with the words following them. In the said Entry 'and' could have been substituted by 'or' only if without the change absurd consequences would have followed. Restricting 'mineral oil' or 'natural gas' to their use in the generation of nuclear energy would not lead to any absurdity….After all the Constitution is a living Civil Appeals No.1113 to 1155 of 2017 etc. -: 57 :- document which caters for future development and progress. Thus Entry 51 can only be accorded its natural meaning and the same shall be read conjunctively. Similarly the Last Antecedent Rule is of no help to the appellants when the plain reading does not admit of any other interpretation but that only such items mentioned therein can be subjected to tax that are used in the generation of nuclear energy. …. 34. Admittedly 'natural gas' is subject to levy of Sales Tax and GIDC Act does not appear to suggest that it is another instance of Sales Tax levied by the Parliament on the supply of natural gas. As held in the above cited judgment, double taxation can be imposed only by clear and specific language and not by implication. 35. Thus under section 2(46) of the Sales Tax Act, 1990 the 'Cess' is one of the cost added to the price of the product for the calculation of sales tax. It cannot therefore be termed as another Sales Tax. …. 36. Coming to Entry 52, Mr. Salman Akram Raja, Advocate Supreme Court, had not urged that the GIDC can be levied under the said Entry. The learned Attorney General initially made submissions with regard to the said Entry but ultimately did not seriously press the same. Mr. Makhdoom Ali Khan, Senior Advocate Supreme Court, in response to the said argument submitted that Entry 49 imposing Sales Tax on 'natural gas' and other commodities and Entry 52 empowering the imposition of tax on capacity are mutually exclusive. That since the 'natural gas' has already been subjected to Sales Tax no additional tax can be levied on the capacity. The learned counsel in this context had referred to Kohinoor Industries Ltd., Faisalabad v. Government of Pakistan (ibid), Central Board of Revenue v. Seven-Up Bottling Company (Pvt.) Ltd. (ibid) and Ellahi Cotton Mills Ltd. v. Federation of Pakistan (supra). The above authorities clearly lay down, with reference to Entry 52 and other Entries in Part-1 of the Federal Legislative List, that tax cannot be levied under the said Entry if the goods or activity has already been subjected to tax or duty under any other Entry. It follows that the GIDC is not Civil Appeals No.1113 to 1155 of 2017 etc. -: 58 :- covered by either of the three Entries, i.e. 49, 51 or 52 of Part-I of the Federal Legislative List. It was admitted on behalf of the appellant that for a 'tax' to fall under the said Federal Legislative List it must be covered by Entries Nos. 43 to 53. Apart from the said three no other Entries were pressed in service on behalf of the appellants for declaring the 'Cess' as 'tax'. On this count too the 'Cess' could not have been introduced through a money bill under Article 73 of the Constitution. …. 42. It was pointed out on behalf of the respondents that the Ministry of Petroleum and Natural Resources was of the view that the issue of levy of the 'Cess' may be placed for its approval before the Council of Commons Interest, which represents all the federating units. Similar was the opinion expressed by the Ministry of Law, Justice and Parliamentary Affairs. This fact was expressly averred in the Constitution Petitions filed before the Peshawar High Court and was not denied by the Federal Government. True that such an advice or opinion or non-reference of the matter to the Council of Common Interest would not render the levy illegal or invalid, nevertheless it would have been appropriate had the federating units been taken into confidence, particularly in the context of Article 160(3) of the Constitution. …. 45. To conclude the GIDC is a fee and not a tax, in the alternative it is not covered by any Entry relating to imposition or levy of tax under Part-I of the Federal Legislative List. On either counts the 'Cess' could not have been introduced through a money bill under Article 73 of the Constitution. The same was, therefore, not validly levied in accordance with the Constitution. 61. Durrani Ceramics declared that setting up of the infrastructure development gas projects would ensure continuous and increased supply of gas for the gas consumers, thereby constituting a service against the Fee (GIDC) charged. The continuous and increased supply of gas to the gas consumers was an assumption drawn by the Court, as no such legislative promise is borne out from Act, 2011. However, this assumption remained Civil Appeals No.1113 to 1155 of 2017 etc. -: 59 :- unchallenged in the review (Durrani Ceramics-II) by the parties and came to be the service rendered or quid pro quo under Act, 2011. The argument of the appellants that Durrani Ceramics has a limited precedential value, as it was restricted to the question of Tax and the legislative procedure of Money Bill, is not correct. This Court in answering these questions has also declared that GIDC is a Fee. This declaration was re-affirmed in review filed by the Federal Government. In the background of the jurisprudence discussed above, I see no reason to take a view different from that of Durrani Ceramics which simply holds that the concept of infrastructure development of gas pipeline projects leading to continuous and increased gas supply in the country constitutes service or quid pro quo for the appellants. The ground reality of the gas projects at the time of Durrani Ceramics was not so noticeable or stark as it is now (discussed hereunder) and, therefore, the delivery or actualization of the service, has come to be of critical importance. 62. Moved by the facts on the ground, I feel it necessary to re- examine the meaning and concept of Fee and the scope and extent of its inbuilt reciprocity - quid pro quo. The question, regarding “future service” which is of pivotal importance to this case, though raised in Durrani Ceramics, was not addressed or answered. I now move beyond Durrani Ceramics to grapple with the question of future service and look for a more contemporary meaning of quid pro quo. FUTURE SERVICE & TIMELINE 63. Existing jurisprudence informs us that it is not that all the required services against a Fee must be in place before a Fee can be levied.21 Merely because the benefits to be received are postponed, it cannot be said that there is no ‘quid pro quo’. It is true that ordinarily a return in praesenti is generally the case when Fee is levied but simultaneity or contemporaneity of payment and benefit is not the most vital or crucial test to determine whether a levy is a Fee or not, especially in long-term projects. In fact, it may 21 Agriculture Market Committee, Rajam and others vs. Rajam Jute and Oil Millers Association, Rajam (AIR 2003 SC 1742) Civil Appeals No.1113 to 1155 of 2017 etc. -: 60 :- often happen that the rendering of a service or the conferment of a benefit may only follow after the consolidation of a fund from the Fee levied. Hospitals, for instance, cannot be built in a day nor medical facilities or gas supply provided right from the day of the commencement of the scheme. It is only after infrastructure development is available that one may reasonably expect a compensating return. How soon a return may be expected or ought to be given must necessarily depend on the nature of the services required to be rendered and benefits required to be conferred.22 So while “service to be rendered” or quid pro quo in future is permissible it is equally important that the prospects of such a future service are certain, as if tied in time, with the payment of Fee. I come to this important question later in the judgment. - Instant case and its unique facts 64. Let’s leapfrog from 2011 (imposition of GIDC) to 2014 (Durrani Cermaics) and finally to 2020 (current case). The facts and figures of this case are admitted and show that utilization of GIDC as per the earlier and the recent statute is for setting up infrastructure development of Iran Pakistan Pipeline Project (IP), Turkmenistan-Afghanistan-Pakistan-India (TAPI) Pipeline Project, LNG or other ancillary projects. These projects were financed through the imposition of GIDC (Fee), used as a tool of public finance. The gas consumers have been paying GIDC for almost a decade, as is established from the accounts and the status of the projects placed before us by the Interstate Gas System (Pvt) Ltd, which we are informed, is the company that is to set up these projects on behalf of the Federal Government. The figures hereunder undisputedly reveal that there has been no work on the ground and these gas projects have no physical existence, whatsoever, in Pakistan. Letter of the Finance Division, Government of Pakistan dated 18.02.2020 signed by the Deputy Secretary (Budget Resources) filed23 in Court reveals that the total amount of GIDC accrued, collected and outstanding as on 22 M/s. Gasket Radiators Pvt. Ltd. v. Employees' State Insurance Corporation & another (AIR 1985 SC 790) 23 through CMA 1259/2020 in CA Nos. 1113 to 1155/2017 Civil Appeals No.1113 to 1155 of 2017 etc. -: 61 :- 30.6.2019 is as under and does not include Late Payment Surcharge under section 3(3) of the Act. TOTAL COLLECTION OF GIDC Levy and Collection of GIDC Rs. In Million Sr.# Sector GIDC Accrued GIDC Collected GIDC Outstanding 1 Fertilizer Feed (old) 192,240.31 111,814.62 80,425.69 2 Fertilizer Feed (New) 68,281.71 1,142.89 67,138.82 3 Fertilizer – Fuel 31,772.12 15,205.66 16,566.46 4 General Industry 70,729.64 24,402.27 46,327.37 5 IPPs 60,845.19 51,713.50 9,131.69 6 KESC 40,421.05 3,912.18 36,508.87 7 GENCO/WAPDA 67,317.33 44,753.78 22,563.55 8 Captive Power 119,247.65 17,522.73 101,724.92 9 CNG Region-I 53,420.68 11,765.63 41,655.05 10 CNG Region-II 48,073.10 13,169.51 34,903.59 Grand Total 752,348.78 295,402.77 456,946.01 The details of the funding and expenditure are as follows:- INTER STATE GAS SYSTEM (PVT.) LIMITED Summary of expenditure and funding of gas infrastructure projects:24 Project Iran Pakistan (IP) Gas Pipeline Project TAPI Pipeline Project North South Gas Pipeline Project Underground Gas Storages Total All amounts in PKR Estimated Project Cost 271 billion 1,500 billion 405 billion 75 billion 2,251 billion Pakistan share 271 billion 31.353 billion 20.25 billion 75 billion 397.6 billion Development Phase expenditure – already incurred funded through GIDC (received todate) Nil 0.483 billion Nil Nil 0.483 billion 24 1. No funds have been released to date for above gas infrastructure projects from GIDC except GOP equity contribution in TAPI Pipeline Company Limited (TPCL). The amount released is only PKR 482.57 million, an equivalent of USD 4.1 million in respect of two cash calls (First and second financial closing) from TPCL for TAPI Project. The first tranche of USD 2.65 million was released in May 2016 and the second tranche of USD 1.45 million was in June 2019. ECC of the Cabinet approved to inject 5% equity into TAPI Project vide case No.ECC-164/23/2015 dated 18th December, 2015. 2. As a stopgap arrangement, financing from GHPL for projects have been arranged by ECC. Civil Appeals No.1113 to 1155 of 2017 etc. -: 62 :- Development Phase expenditure- already incurred funded by GHPL 3.3 billion 0.756 billion 0.135 billion 0.040 billion 4.2 billion Total development and construction cost- to be funded through GIDC 271 billion 30.513 billion 20.250 billion 75 billion 396.7 billion 65. The Letter further states that a meeting was held in the Petroleum Division attended by relevant officers of Petroleum Division and Finance Division and the proposal for the way forward was that “the amount of GIDC (Rs. 295.403 billion) shall be utilized against projects to be submitted by Petroleum Division through budgetary mechanism in line with GIDC enactments.” This proposal was to be approved by ECC/Cabinet. This was the state of affairs on 18.02.2020, almost nine years after the levy of GIDC. 66. Status of these projects has been attached with Letter dated 11.02.2020 issued by the Interstate Gas Systems (Pvt) Ltd and filed in Court.25 The Project Brief on Turkmenistan-Afghanistan- Pakistan-India (TAPI) Gas Pipeline Project does not mention about the actual development of the pipeline infrastructure in Pakistan or the date when supply of gas will be made available. And the Project Brief on Iran-Pakistan (IP) Gas Pipeline Project mentions that “the current status of the Project is that Pakistan’s contractual obligations are suspended under the Agreement, however, the legally binding agreement is still in place and the Government of Pakistan is still committed with the Project. The two sides have recently given themselves a further period of five years for the implementation of the Project by signing Amendment Agreement No. 3 of GSPA on 5th September, 2019.” The details of the Projects as given by the Federal Government are as follows:- INTER STATE GAS SYSTEM (PVT.) LIMITED a. Turkmenistan – Afghanistan – Pakistan-India (TAPI) Pipeline Project Description USD PKR3 Estimated Project Cost 10,000 million 1,500,000 million Pakistan share @ 5% equity share under Investment Agreement 209.02 million 31,353 million Development Phase expenditure-already 25 Through CMA 1058/2020 in CA Nos. 11113 to 1155 /2017 Civil Appeals No.1113 to 1155 of 2017 etc. -: 63 :- incurred Project development Cost – Paid by GoP through Supplementary Grant 1.5 million 153 million Project development cost – funding through GIDC 4.1 million 483 million Project development and operational expenditure – funded by GHPL 4.02 million1 603 million1 Future development cost – to be incurred 5 million2 750 million2 Future construction Cost – to be incurred 194.4 million2 29,160 million2 Total development and construction cost – to be funded through GIDC 203.42 million 30,513 million 1 The other development and operational costs were funded by GHPL, the parent company of ISGS, hence require replenishment from GIDC to settle the same with GHPL. 2 Development and construction expenditure are expected to be incurred in next 24 months. 3 All amounts have been converted @ PKR 150/US$. ________________________________________ INTER STATE GAS SYSTEM (PVT.) LIMITED b. Iran Pakistan (IP) Gas Pipeline Project: Description USD PKR3 Estimated Project Cost 1,806 million 270,900 million Development Phase expenditure-already incurred Project development cost – funded from GIDC Nil Nil Project development and operational cost – Funded by GHPL 22.06 million1 3,300 million1 Development cost – to be incurred 5 million2 750 million2 Construction Cost – to be incurred 1.779 million2 266,850 million2 Total development and construction cost – to be funded through GIDC 1,806.06 million 270,900 million 1 The project development and operation costs were funded by Government Holding Private Limited (GHPL), the parent company of ISGS, hence require replenishment from GIDC to settle the same with GHPL. 2 Construction of the project will take 36 months after awards of construction contract, subject to easement of International sanctions on Iran. 3 All amounts have been converted @ PKR 150/US$. ___________________________________________________ INTER STATE GAS SYSTEM (PVT.) LIMITED c. North South Gas Pipeline Project (NSGP) Description USD PKR3 Estimated Project Cost 2,700 million 405,000 million Pakistan share of Cost @ 5% equity share 135 million 20,250 million Development Phase expenditure-already incurred Project development cost – funded from GIDC Nil Nil Project development and operational Cost – funded by GHPL 0.9 million1 135 million1 Future development cost – to be incurred 4 million 600 million Civil Appeals No.1113 to 1155 of 2017 etc. -: 64 :- Future construction cost – to be incurred 130.1 million 19,515 million Total development and construction cost – to be funded through GIDC 135 million2 20,250 million2 1 The other development and operational costs were funded by GHPL, the parent company of ISGS, hence require replenishment from GIDC to settle the same with GHPL. 2 Development and construction expenditure are expected to be incurred in next 2 to 3 years. 3 All amounts have been converted @ PKR 150/US$. ___________________________________________________ INTER STATE GAS SYSTEM (PVT.) LIMITED d. Underground Gas Storages Description USD PKR3 Estimated Project Cost 500 million 75,000 million Development Phase expenditure-already incurred Project development cost – funded from GIDC Nil Nil Project development and operational Cost – funded by GHPL 0.27 million1 40 million1 Future development cost – to be incurred 3 million 450 million Future construction cost – to be incurred 497 million 74,550 million Total development and construction cost – to be funded through GIDC 500 million2 75,000 million2 1 he other development and operational costs were funded by GHPL, the parent company of ISGS, hence require replenishment from GIDC to settle the same with GHPL. 2 evelopment and construction expenditure are expected to be incurred in next 2 to 3 years. 3 ll amounts have been converted @ PKR 150/US$. ___________________________________________________ 67. The above record undisputedly reveals that no development phase expenditure has taken place and that project development cost funded by GIDC is Nil.26 Even though, there is nothing on the ground, these projects were announced in 2011 and GIDC is since then being collected. The representatives of the concerned Ministries were at sea when asked to give a definite timeline for the service in return. -Position of the Projects in the Pakistan Economic Survey 26 except the initial payment made in TAPI Civil Appeals No.1113 to 1155 of 2017 etc. -: 65 :- 68. The Pakistan Economic Survey 2014-1527 mentioned that the Government is taking steps to overcome the shortfall of natural gas by, inter alia, importing natural gas from Iran and Turkmenistan. It further provides as follows; The two transnational gas pipelines that Pakistan has pursued for over two decades have been delayed due to reasons beyond control. The 750 MMCFD Iran-Pakistan (IP) gas pipeline has been delayed due to international sanctions (although there is hope for removal of the sanctions) and the 1,325 MMCFD Turkmenistan- Afghanistan-Pakistan-India (TAPI) pipeline has been delayed due to the security situation in Afghanistan and structural issues with project transaction. The Government of Pakistan is now successful to import 500 million cubic feet per day (mmcfd) of LNG from Qatar. The same Survey (2014-15)28 further states: During the recent visit of the Prime Minister to Turkmenistan….the review of Turkmenistan- Afghanistan-Pakistan-India (TAPI) pipeline and energy security remained main focus of the meeting. The project is expected to be materialized by end of 2017 will be providing the gas of 1.3 billion cubic feet to Pakistan. 69. There is no mention of IP or TAPI pipeline projects in the Pakistan Economic Surveys of 2015-16, 2016-17, 2017-18, 2018- 19 and 2019-20. And Chapter-14 on “Energy” in the latest Pakistan Economic Survey 2019-20 states as follows29: Pakistan is successfully overcoming energy crisis, which has direct and indirect impact on all sectors of the economy. Presently, Energy Sector is confronted with demand supply gap….in terms of energy-mix, Pakistan’s reliance on thermal which includes imported coal, local coal and RLNG and natural gas has been decreasing over the last few years. Pakistan’s dependence on natural gas in the overall energy mix is on decline and the reduction of its share in the energy mix may be attributed to declining natural gas reserves as well as to the introduction of LNG since 2015. Gas Sector Natural Gas is a clean, safe, efficient and environment friendly fuel. Its indigenous supplies contribute about 38 percent in total primary energy supply mix of the country. Pakistan produces around four (4) Billion Cubic Feet Per Day (Bcfd) of indigenous natural gas against an unconstrained demand of over six (6) Bcfd. To meet the shortfall, the GoP has initiated the import of LNG. (emphasis supplied) 27 pp. 241 & 242. 28 P. 236 29 pp. 273 & 276 Civil Appeals No.1113 to 1155 of 2017 etc. -: 66 :- 70. Pakistan Economic Survey is silent regarding these projects since 2015 and shows that the shortfall in natural gas is being successfully plugged through the import of LNG, which surprisingly, is not a GIDC funded Project. The above documents show that after a decade of charging GIDC from gas consumers and after having collected Rs 295.40 billion to-date there is no sign of development of the gas pipeline projects in Pakistan. Absence of the said projects and emphasis on the import of LNG in the latest Pakistan Economic Survey hazards a guess that the Government of Pakistan is either not willing to or is unable to complete these projects and therefore the shortfall in gas supply is being increasingly plugged through LNG imported from Qatar. - Annual Reporting to the Parliament under section 4(2) of the Act & Parliamentary Practice. 71. The Act, in its wisdom, considering the long-term nature of the infrastructure development gas pipeline projects required the Federal Government to inform both the Houses of the Parliament regarding the utilization of GIDC by tabling an Annual Report under Section 4 (2) of the Act, which provides as follows: The annual report in respect of the utilization of the cess shall be laid before the both houses of Majlis-e- Shoora (Parliament) after three months at the end of each fiscal year. 72. This is the closest the Act came to realizing that the levy of Fee is not contemporaneous and entails a time-lag and therefore requires a Parliamentary oversight on the utilization of GIDC. This was to ensure that the Government delivers the promised service of continuous and increased gas supply, to the gas consumers, at the earliest and also to check that the funds collected are earmarked and utilized for these projects only. It is an admitted position that not a single Annual Report was tabled before the Houses of the Parliament except the one placed before the Parliament on 30.06.2019 after the filing of these cases. The Government has unabashedly and successively hoodwinked the Parliamentary oversight, paying little heed to the Energy crisis in the country; the interest of the gas consumers who have been regularly paying GIDC and the welfare of the general public. More disturbingly, the Parliament itself, inspite of acute Energy crisis in the country, Civil Appeals No.1113 to 1155 of 2017 etc. -: 67 :- never took the Federal Government to task and allowed a decade to pass by. The Executive and the Legislature both have failed the appellants and public expectations besides wasting valuable time and opportunity to utilize and divert the money collected to some other projects to alleviate the gas shortage in the country. I completely disagree with Majority View that the Executive has not been at fault. Had the Executive apprised the Parliament under the Act, legislative intervention may have followed, saving everyone this long drawn litigation and better financial management and use of Rs.295 Billion, which is sitting unused with the Federal Government.30 73. According to the legislative design behind section 4(2) of the Act, these Annual Reports would have disclosed the status of the projects and their funding to the Parliament. In case of inordinate delay or non-development of the projects the Parliament could take appropriate action. Under the Rules of Procedure and Conduct of Business of the National Assembly, 2007 (“Rules”) these Annual Reports under section 4(2) of the Act would stand referred to a Standing Committee concerned under Rule 181 read with Rules 198, 201 and 235 of the Rules. The Rules provide that the Standing Committees can examine the expenditure, administration and policies of the Ministry concerned and may forward its report of findings and recommendations to the Ministry to submit its reply to the Committee. This never happened as the Government admittedly failed to submit Annual Report regarding GIDC and the Projects to the Parliament. Timely interference by the Parliament would have borne different results. 74. It might not be out of place to mention that Parliament today has become more and more a multi-functional institution performing variety of roles. Some of the cardinal roles and functions of the Parliament are: Legislation, Oversight of the Government actions and Financial Accountability of the Government and the public sector. Parliament makes laws, authorizes the Government to spend public money, scrutinizes the Government activities and is a forum for debate on national issues. 30 Subject to some payments made as indicated above. Civil Appeals No.1113 to 1155 of 2017 etc. -: 68 :- 75. The worst thing that the Government in a parliamentary system can do is to deny information to the Parliament. The Executive is answerable to the Parliament. Article 91(6) of the Constitution declares it in unequivocal terms that the Cabinet, together with the Ministers of State, shall be collectively responsible to the Senate and the National Assembly. It is the function of Parliament to exercise political and financial control over the Executive. To call for information is perhaps the greatest power of Parliament. Even otherwise, it is the duty of the Government itself to feed Parliament with information, which is full, truthful, precise and supplied in time. This is seen by Ministers making statements on the floor of the House, laying reports and papers on the Table of the House. All these constitute a wealth of information, which becomes immediately public and can be issued to raise discussion in the House.31 Nothing of the sort took place in the Parliament on GIDC and almost ten years passed without a whimper. This failure on the part of the two prime institutions of the country reflects poor governance and unsatisfactory performance of their constitutional duties, to say the least. Timeline – essential requirement for quid pro quo 76. I now re-visit the constitutional concept of Fee, a levy which appears as “Fee for any service rendered” in Articles 72(3)(a), 115(3)(a), 165(3) and as “Fee” in Articles 203B(c), 270AA(7), 279 and item nos. 54 and 15 of Parts I and II of the Federal Legislative List, respectively. In the present case, Fee is being charged as a tool of public finance for raising funds for the infrastructure development of gas projects, with the corresponding service of continuous and increased supply of natural gas for the gas consumers, to meet the energy shortfall in the country. It is axiomatic that, in this case, service rendered in return or quid pro quo will materialize after the gas pipeline projects are set up, hence the service will be rendered after a time-lag and will therefore be a future service. 77. It is jurisprudentially settled that the concept of Fee, as opposed to Tax, is premised on a service in return or quid pro quo. 31 Subhash C Kashyap, Parliamentary Procedure. Universal. 2006 pp. 19, 23 & 25 Civil Appeals No.1113 to 1155 of 2017 etc. -: 69 :- This essential constituent of Fee needs further elaboration in the backdrop of the present case. Examination of the existing jurisprudence shows that courts have over time laboured to determine whether in a particular case there existed a service in return in order to justify the levy as a Fee as opposed to a Tax. The question never arose regarding the actual delivery of the service, perhaps for the reason that in most of the cases either the service was available or was easily made available in short span of time, so the payer never had a concern regarding the actual delivery of the service. This dimension of time has not come up for discussion in the existing jurisprudence or writings on “Tax vs Fee” in any detail. The facts of the present case have prompted me to consider the time dimension of service to be rendered in return for the payment of a Fee. It cannot be denied that words and phrases take colour, shape and character in a context and mean differently in different contexts. It is worthwhile to remember that there is a living content behind words and phrases, which breathes, and so, expands and contracts with changing times. 78. The staggering facts of this case beg the question whether the fundamental constituent of Fee i.e., service in return or quid pro quo or future service should have a certain timeline? Service in return or quid pro quo seems to exist at two levels. First, at the theoretical level - the examination of the legislative design should show that there is a quid pro quo or service to be rendered in return for the Fee. Second, at the applied level - this deals with the actual delivery of the service or a definite timeline for the delivery of future service. The legitimization of Fee requires the existence of service at both the levels: theoretical, as well as, applied. It will be absurd and illogical to conceive that a payer of Fee, who is subject to compulsory exaction of money by the State, is left to grope in the dark, guessing when the promised service is to be rendered. Fee is a constitutional levy against a service rendered, which cannot be structured on assumptions, suppositions, expectations and verbal commitments of the Executive but require a clear, crisp and certain statutory timeline. For the Fee to have a constitutional existence, the service to be rendered in return or the quid pro quo must be certain, clear, unambiguous and within a definite time- Civil Appeals No.1113 to 1155 of 2017 etc. -: 70 :- frame. Durrani Ceramics settles the case at the theoretical level only. The case did not touch the applied level, because the facts of the case in the year 2014 did not necessitate the examination of this aspect, as the Court and the parties assumed at that time that the service would be rendered in a reasonable period of time. 79. The underlying theme of a Fee is based on relationship of reciprocity and mutuality- the quid pro quo. The legislation that imposes a Fee must cater for this reciprocity and guard this relationship premised on quid pro quo. While there is an obligation of the payer to deposit Fee on time which is subject to a surcharge for late payment, there must also be a corresponding obligation on the State or the authority responsible to provide the service in return, to do the same within a definite timeline. Without this corresponding obligation, the legislation fails to recognize the core ingredient of a Fee – the quid pro quo. It is by all means a legitimate expectation of the payer of Fee to know when will the service be delivered. His rights to property, trade and business under the Constitution require it. The payment of Fee by the payer cannot be towards a service that floats in a timeless zone; is open-ended and uncertain. Any service to be rendered in such like cases becomes a disservice. The relationship in a Fee must exist till the end. Failure in providing future service within reasonable timeline, deprives the Fee of its essential character, sheds its complexion as a Fee and gives that of a Tax, as such failure and the uncertainty of time diminishes the requisite degree of correlation between the payment of Fee and provision of service in return. This indefiniteness negates the concept of Fee and partakes the character of a Tax. Therefore, service against a Fee is not simply a theoretical recognition of the service to be rendered but must also have certainty in its applied form i.e., the timeline for the actual delivery. The theoretical and applied constituents of the levy must exist in the legislative design, for the levy to stand as a Fee under the Constitution otherwise it passes for a Tax. 80. The Act is silent on these counts and therefore passes for colourable legislation as it actually imposes a levy unknown to the constitution in the garb of a Fee. The Act does not provide a level- playing field for the parties and is devoid of the basic fairness, Civil Appeals No.1113 to 1155 of 2017 etc. -: 71 :- protection and due process that is required to be meted out to a payer who is the source of the public finance required for funding these long-term gas projects. Such a law offends and renders constitutional protections of right to property, business and non- discrimination, absolutely hollow and meaningless. 81. This unexpected delay and uncertainty in the supply of gas (service to be rendered or quid pro quo) is both a Legislative and an Executive failure. The Federal Government should have tabled Annual Reports before both the Houses of the Parliament under section 4(2) of the Act and apprised the Parliament of the delay and its reasons or furnished a timeline for the completion of these projects. Irrespective of these responsibilities, Executive is there only to implement the law and if the law is silent regarding the timeline of delivery of service, the Executive carries no obligation to provide the service, except an expectation or assumption of a reasonable time, which is not actionable under the law, as the law envisages no penalty for such an omission. There is even no penalty for not tabling the Annual Reports before the Parliament by the Executive. In the absence of any statutory obligation and corresponding penalty, the real failure is of the legislative design. -nature of fiscal statute 82. The above discussion becomes more nuanced when considered in the backdrop of a fiscal statute. The principles of interpretation of a fiscal statute apply equally to a Fee as they do to a Tax - both being compulsory exactions of money by the State. It was expressed by Rowlatt J. in Cape Brandy Syndicate v. IRC32 that ‘in a taxing statute, one has to look at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can look fairly at the language used33.’ It is settled that interpreting a taxing statute, equitable 32 Cape Brandy Syndicate vs. IRC ([1921] 1KB 64). 33 Pakistan Television Corporation Limited vs. Commissioner Inland Revenue (Legal), LTU, Islamabad and others (2017 SCMR 1136), Commissioner of Income Tax and another vs. Baluchistan Concrete and Block Works Ltd. and others (2017 SCMR 1), Chairman, Federal Board of Revenue, Islamabad vs. Al- Technique Corporation of Pakistan Ltd. and others (PLD 2017 SC 99), Commissioner of Income Tax Legal Division, Lahore and others v. Khurshid Ahmad and others (PLD 2016 SC 545), Zila Council Jehlum through District Coordination Officer vs. Pakistan Tobacco Company Ltd. and others (PLD 2016 SC 398). Civil Appeals No.1113 to 1155 of 2017 etc. -: 72 :- consideration are entirely out of place. Nor can taxing statute be interpreted on any presumptions or assumptions. The court must look squarely at the words of the statute and interpret them. The court cannot imply anything that is not expressed, it cannot import provisions in the statutes so as to supply an assumed deficiency.34 A taxing statues, if it professes to impose a charge, its intention must be expressed in clear, unequivocal and unambiguous language. A hunt into the intention to find a charge is impermissible. No equitable construction of a charging section is to be applied. The charging section is to be construed strictly regardless of its consequences that may appear to the judicial mind to be. It is not the function of the court to hunt out ambiguities by strained and unnatural meaning.35 Fiscal legislation requires that any law that levies a Fee must first unambiguously and clearly spell out the nature of the service to be rendered in return (quid pro quo) and then provide for a reasonable and definite timeline for the delivery of such service. The legislature must also consider the entire mechanism at work behind this relationship of reciprocity – for example, the obligations of the provider of Fee, the consequences of delay and failure to render service including refund. - Our Constitution and the living tree doctrine 83. I know that the Constitution is organic and a living testament of the aspirations of the people it governs. The “living tree” doctrine36 allows the Constitution to change and evolve over time while still acknowledging its original intentions. The doctrine achieves a balance between two seemingly contradictory goals: predictability and flexibility. To be effective, the Constitution must 34 Bechu Company vs. Assistant Commissioner. (2003 STC (132) 68) (also See N.S. Bindra’s – Interpretation of Statutes. p.863 (12th Edition). 35 Film Exhibiter’s Guild vs. State of Andhra Pardesh (AIR 1987 AP 110) (also See N.S. Bindra’s – Interpretation of Statutes. p.863-864 (12th Edition). 36 The Living Tree doctrine was first conceived of in a 1929 decision, Edwards vs Canada otherwise known as the ‘Persons Case’, issued by the Canada’s highest court at the time, the Judicial Committee of the Privy Council (JCPC) in Britain. After analyzing the Constitution’s use of the term ‘persons’, which had always referred to men, the JCPC decided that both men and women were now ‘persons’, and therefore could be equally called to sit in the Canadian senate. According to the historically celebrated words of Justice Sankey, while constitutional stability and integrity are of crucial importance, the Constitution ‘also planted in Canada a living tree capable of growth and expansion within its natural limits’. Women may not have been able to vote or hold office in 1867, but times had changed and so had to change constitutional interpretation: the decision led women to gain a measure of equality to men in the political arena36. Civil Appeals No.1113 to 1155 of 2017 etc. -: 73 :- consist of a predictable set of rules. On the other hand, flexible interpretation accommodates the realities of changing modern life. If the Constitution could not be interpreted this way, it would be frozen in time and become more obsolete than useful. Therefore, contemporary interpreters must focus on what the originators intended it to accomplish rather than what the text actually states before allowing the Constitution to evolve or remain unchanged.37 I know that stability without change is degeneration. Change without stability is anarchy. The role of a judge is to help bridge the gap between the needs of the society and the law without allowing the legal system to degenerate or collapse into anarchy. The judge must ensure stability with change, and change with stability. Like the eagle in the sky, which maintains its stability only when it is moving, so too is the law stable only when it is moving. The life of law is complex. It is not mere logic. It is not mere experience. It is both logic and experience together.38 As Roscoe Pound said “the law must be stable, yet it cannot stand still.”39 Progressive interpretation is to preserve the vitality of the constitution: unless interpreted in this way, it would be frozen in time and become more obsolete than useful. Our courts have repeatedly underlined that our Constitution is a living document and encouraged its progressive interpretation.40 Therefore, the word “Fee” and the phrase “service rendered in return” or “quid pro quo” must also evolve to meet the new fiscal realities of the State. Fee, therefore, under the Constitution today would mean a fiscal levy that clearly and unambiguously describes the service rendered in return, so that Courts don’t have to unnecessarily hunt the meaning and nature of the levy in the letter of the law. Secondly, 37 Living Tree Doctrine, Centre for Constitutional Studies. Also see: Edwards vs. Canada (Attorney General) (1930 AC 124) and Reference Re Same Sex Marriage, (2004 SCC 79) (CanLII)[Same-Sex] 38 Barak, The Judge in Democracy. Princeton University Press. 2006 39 “Hence all thinking about law has struggled to reconcile the conflicting demands of the need to stability and of the need of change. Law must be stable and yet it cannot stand still.” Interpretations of Legal History 1 (1923) 40 Sindh Revenue Board through Chairman Government of Sindh and another vs. The Civil Aviation Authority of Pakistan through Airport Manager (2017 SCMR 1344), Lahore Development Authority through D.G. and others vs. Ms. Imrana Tiwana and others (2015 SCMR 1739), Province of Sindh through Chief Secretary and others vs. M.Q.M. through Deputy Convener and others (PLD 2014 SC 531), Reference by the President of Pakistan under Article 186 of the Constitution of Islamic Republic of Pakistan, 1973 (PLD 2013 SC 279); Rana Aamer Raza Ashfaq and another vs. Dr. Minhaj Ahmad Khan and another (2012 SCMR 6); Al-Raham Travels and Tours (Pvt) Ltd and others vs. Ministry of Religious Affairs, Hajj, Zakat and Ushr through Secretary and others (2011 SCMR 1621), Arshad Mehmood and Others vs. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others (PLD 2005 SC 193); Civil Appeals No.1113 to 1155 of 2017 etc. -: 74 :- the reciprocal service to be rendered in return or the quid pro quo must be structured to have a reasonably certain and definite timeline. If the constituent of time is missing (the applied part), the service becomes practically non-existent and the levy no more retains the character of Fee and becomes a Tax rendering the levy unconstitutional. Distinguishing Durrani Ceramics 84. The factual matrix of the instant case is very different from that of Durrani Ceramics. It is settled law that if a new case is dissimilar to an earlier case in ways that seem important, the court will ‘distinguish” it and reach a result different from what the precedent would otherwise suggest or even dictate. In common parlance, either the precedent or the pending case may be said to be “distinguished” from the other.41 In this way, the former decision might be said to be “rerationalized42.” A precedent, whether persuasive or binding, need not be applied or followed if it can be distinguished; that is, there is a material distinction between the facts of the precedent case and the case in question. According to Zander, ‘distinguishing between factual situations and applying the appropriate rule of law is one of the lawyer’s and judge’s most crucial functions.”43 The technique of distinguishing past case is a powerful engine of legal change.44 Distinguishing means that each case was decided correctly based solely on its own facts because the facts were materially different. Joseph Raz argues that the boundaries of distinguishing “are far from fixed,” he asserts that, the [boundaries] undergo continual change.”45 The crucial question is: Are there any material differences between the facts of the case at bar and the facts of the prior cases to warrant the rule being different? In principle, the distinguishing of an apparent decision presents no problem for the doctrine of precedent.46 The facts of this case, showing that the gas projects have not even started for almost a decade yet the Fee is being constantly charged since 2011 present us with new facts that were 41 Bryan A Garner. The Law of Judicial Precedent, 2016 p.97 42 Joseph Raz, The Authority of Law 186 (1979) 43 Zander, The Law, p.270 (Also see Muhammad Munir, Precedent in Pakistan Law, Oxford, 2014) 44 Theodore, The Rule of Precedent, op cit. p. 99 45 Raz, The Authority of Law, p. 185 46 Muhammad Munir, Precedent in Pakistan Law, Oxford, 2014. P.219 Civil Appeals No.1113 to 1155 of 2017 etc. -: 75 :- not so gravely present at the time of Durrani Ceramics, hence the said precedent is clearly distinguishable and stands on its own facts. Cess Rates- discriminatory 85. The Act provides for the following rates for different Industrial Gas consumers:- SECOND SCHEDULE OF THE ACT S.No. Sector Maximum Rate of Cess (Rs./MMBTU) (1) (2) (3) 1. Fertilizer-Feed (Old) 300.00 2. Fertilizer-Feed (New) 300.00 3. Fertilizer-Fuel 150.00 4. Captive Power 200.00 5. Industry 100.00 6. KESC/GENCO 100.00 7. IPPs 100.00 The purpose of the Act is to raise public finance for the infrastructure development of the gas projects mentioned in section 4 of the Act through levy of Fee on the above-mentioned gas consumers. There appears to be no intelligible differentia amongst the different gas consumers mentioned in the Schedule for the purposes of the Act. One justification for charging different rates from amongst the industrial gas consumers could have been their overall consumption of natural gas. The data provided by the latest Pakistan Energy Year Book 201847 shows as follows: Natural Gas Consumption by Sector 2017-2018 Sr. No. Industry Consumption(%) Maximum Rate of Cess (Rs./MMBTU) 1. Fertilizer (feedstock) 12.49% 300 2. Fertilizer (fuel) 4.57% 150 3. Power 37.44% 200 (captive power); 100 (IPPs); 100 (KESC/GENCO) 4. Gen. Industry 18.84% 100 5. Transport (CNG) 4.84% 263.56 (Region-1) and 200 (Region-II) 47 Issued by Ministry of Energy (Petroleum Division) and Hydrocarbon Development Institute of Pakistan. Civil Appeals No.1113 to 1155 of 2017 etc. -: 76 :- The above shows that the differentiation of rates is not based on the consumption pattern of the gas consumers. The rates of GIDC fixed for different gas consumers are, therefore, ex-facie discriminatory and cannot be allowed to stand. 86. I, therefore, hold that any fiscal legislation that imposes a Fee, must clearly spell out the nature of service to be rendered and the reasonable timeline for the delivery of such service. The legislation (including subordinate legislation) must provide a complete mechanism including the consequences of stoppage of collection of Fee or extension of time or refund of Fee in case the project is delayed or cannot be executed in the proposed timeline, respectively. The legislation must safeguard and protect the reciprocity behind a Fee (unlike a tax) by providing corresponding obligations and duties on the parties to the levy. The present Act does not meet this fundamental requirement of a Fee levying legislation, resulting in imposing an unconstitutional levy in the garb of a Fee. This unlawful exaction (levy) offends the rights to property, trade and non-discrimination of the appellants and is hereby declared to be unconstitutional and illegal in its present form. Refund of the amount collected 87. As a consequence, the amount of GIDC collected over the years should be returned and refunded to the payers in full, unless in some cases, it is impractical to so do. The Federal Government shall constitute a Committee to work out a mechanism for refund of GIDC so that payers of GIDC are fully restituted; be it the gas consumers under the Act or the final consumers (people of Pakistan). Even if the gas consumers have passed on the Fee to its customers, technology may be available to credit such customers, so that there is no unjust enrichment on the part of the State. The amount of GIDC that cannot be refunded after exploring all other avenues, shall remain earmarked and be utilized only for the infrastructure development of the gas sector. Civil Appeals No.1113 to 1155 of 2017 etc. -: 77 :- Refund after Six Months 88. I cannot lose sight of the fact that Energy is vital to industry, transport, infrastructure, information technology, agriculture, household users and more. Any nation with a growing economy and improving living standards must secure a robust energy supply. The future of economic development hinges on energy security. Shortage of natural gas in the country is still a reality and the Energy Sector is confronted with demand supply gap which needs to be filled up. According to the latest Pakistan Economic Survey, 2019-20 the indigenous natural gas contributes around 38% in total primary energy supply mix of the country. Pakistan produces around 4 Billion Cubic Feet Per Day (Bcfd) against an unconstrained demand of 6 (Bcfd); the gas pipeline projects in question are based on bilateral and multilateral international agreements with other countries; a sum of Rs.295 billion has been collected as GIDC for the last almost 10 years. Keeping these facts in mind, and especially the issue of energy security, in the larger national interest, I allow the Federal Government a period of six months to initiate appropriate legislation in the light of the principles settled in this judgment including a clear description of the services being rendered, provision of a reasonable timeline for the delivery of service (supply of natural gas) to the gas consumers and a statutory mechanism of obligations and consequences that may arise, if the service is delayed or is not delivered at all. In case the Federal Government fails to do so, it shall refund the amount of GIDC, in the manner mentioned above. 89. These appeals are allowed in the above terms and the petitions are converted into appeals and also allowed. Islamabad, APPROVED FOR REPORTING Iqbal Judge Civil Appeals No.1113 to 1155 of 2017 etc. -: 78 :- ORDER OF THE COURT By majority of two to one (Syed Mansoor Ali Shah, J dissenting), all these appeals and petitions are dismissed. In the light of this decision and the directions contained therein all listed applications also stand disposed of. JUDGE JUDGE JUDGE Islamabad, the 13th of August, 2020

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE SAJJAD ALI SHAH MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL APPEAL NO. 1120 OF 2009 (On appeal against the judgment dated 05.06.2008 passed by the Islamabad High Court, Islamabad in RFA No. 72/1998) Capital Development Authority through its Chairman … Appellant VERSUS Rana Munawar Khan … Respondent For the Appellant: Malik Javed Iqbal Wains, ASC For the Respondent: Mr. Abdur Rashid Awan, ASC Date of Hearing: 07.12.2020 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- This appeal with leave of the Court has been directed against the judgment dated 05.06.2008 passed by the learned Islamabad High Court, Islamabad whereby the Regular First Appeal filed by the appellant Capital Development Authority was dismissed and the judgment and decree dated 06.09.1998 passed by the learned Civil Judge 1st Class, Islamabad, was maintained. 2. Briefly stated the facts of the matter are that on 21.01.1996 respondent filed a suit for declaration and permanent injunction before the Senior Civil Judge, Islamabad, alleging that he is allottee of plot No. 3-G, I/10 Markaz, Islamabad measuring 487.55 square yards through open auction being highest bidder of Rs.34,61,605/-, which was accepted vide letter dated 15.12.1987; that thereafter respondent immediately deposited 25% of the total amount i.e. Rs.8,65,401/- and the balance amount was to be paid Civil Appeal No. 1120/2009 2 in four installments; that according to clause (6) of the allotment letter, the possession of the plot free from all encumbrances and ready for construction was to be delivered to the respondent within a period of one month i.e. on or before 14.01.1988 but the same was delivered on 27.02.1988 without removing high tension wires, electric poles, which were passing through all the commercial plots of that area; that the respondent could not start construction well within time due to the reason that possession of the plot was given late, therefore, could not deposit the first installment, which was due on 01.03.1988; that respondent made numerous representations to the appellant CDA for removing of high tension wires etc but no heed was paid to his request; that on 25.04.1989, the appellant issued notice to the respondent to deposit the installments or in failure the plot would stand cancelled. This led to filing of a suit by the respondent for declaration with the prayer that appellant CDA may be directed to remove the high tension wires from the plot and in the meanwhile the appellant may be restrained to cancel the plot. However, the respondent withdrew the said suit and submitted a complaint before the Wafaqi Mohtasib (Federal Ombudsman) for rescheduling of payment and waiving of the interest and delayed payment charges, which was accepted by the Ombudsman and pursuant to the letter issued by the Wafaqi Mohtasib Secretariate dated 26.09.1994, the appellant CDA rescheduled the installment plan on 27.10.1994. It was the claim of the respondent that after rescheduling, he had paid all the installments within time but despite that the appellant CDA has demanded an amount of Rs.26,01,099.46/- on account of delayed payment charges vide letters dated 07.03.1995 and 03.01.1996. Civil Appeal No. 1120/2009 3 The learned Trial Court vide its judgment dated 06.06.1998 decreed the suit. Being aggrieved, the appellant CDA filed Regular First Appeal before the Islamabad High Court, but the same has been dismissed vide impugned judgment. Hence, this appeal with leave of the Court. 3. Learned counsel for the appellant inter alia contended that the impugned judgment passed by the learned High Court is non-speaking, suffers from misreading and non-reading of the evidence and is based on misinterpretation of allotment letter, which is not sustainable in law; that the evidence led by the appellant has not been considered in its true perspective, which has resulted into miscarriage of justice; that the learned courts below misinterpreted clause (6) of the allotment letter, which does not cast a duty on appellant to deliver possession, free from all encumbrances, within one month of the issuance of letter rather it was the duty of the respondent to take possession within one month; that the second suit filed by the appellant was barred by res judicata and the same was not proceedable; that the delayed payment charges to the tune of Rs.26,01,099.46/- were due from the respondent and the contention of the respondent that the same have been waived off by Wafaqi Mohtasib is incorrect and that if the delayed payment charges are waived off, the appellant would suffer a great financial loss. He lastly contended that keeping in view the facts and circumstances of this case, the suit of the respondent is liable to be dismissed and the judgment of the learned High Court may be set aside. 4. Learned counsel for the respondent, on the other hand, opposed the contentions of the learned counsel for the Civil Appeal No. 1120/2009 4 appellant. He contended that both the suits filed by the respondent were filed on different cause of action, therefore, the principle of res judicata would not apply; that the rescheduling was made on the direction of Federal Ombudsman and the respondent accordingly paid the entire amount; that after payment of the dues after rescheduling, the mater became past and closed transaction and the respondent could not have been again asked to pay the late payment charges. He lastly contended that the learned courts below after considering the evidence led by him have rightly decreed the suit, to which no exception can be taken. 5. We have heard learned counsel for the parties and have perused the case file. 6. The main emphasis of the respondent as to why he did not pay the installments well within time after allotment of plot is that according to clause (6) of the lease agreement dated 15.12.1987, the possession of the plot free from all encumbrances and ready for construction was to be delivered to him within a period of one month i.e. on or before 14.01.1988 but the same was delivered on 27.02.1988 without removing high tension wires and electric poles, which were passing through all the commercial plots of that area. It would be advantageous to reproduce the said clause for ready reference. The same reads as under:- “6. The lessee shall take over possession of the land within one month from the date of issue of this letter, failing which possession shall be deemed to have been taken over and execute an agreement within one month from the date of possession and get the same registered at his/her own cost. The lessee shall submit building plans/drawings duly prepared by any of the approved/registered/licensed Architect of the CDA. However, in case of lessee desires to get Civil Appeal No. 1120/2009 5 the building designed from CDA, same would be arranged by the Deputy Director General (Design) CDA on payment of designing fee @ 3% or designing and top supervision fee @ Rs.6% of the estimated cost of the building. 7. There is nowhere mentioned in this clause that the appellant Authority was bound to deliver the possession after removing of high tension wires etc. However, it appears from the noting portion of the CDA that Town Planner-I vide his memo dated 23.01.1988 had informed that a overhead electric line is encroaching the commercial plots in the south of I-10 Markaz but the same was removed and the possession was handed over to the respondent without any further encroachment. This finds force from the possession letter dated 27.02.1988, wherein the respondent has himself admitted that “there is no encroachment on my plot”. The respondent has himself signed the possession letter and certified that he has seen his plot and all its corners, there is no encroachment on his plot, and no service line is passing within his plot. Although possession was delivered to him late but the delay was only of 40 to 45 days. The respondent had to pay the first installment by 01.03.1988 but despite the fact that possession was handed over to him on 27.02.1988, he did not pay the same. The appellant CDA issued him a letter dated 08.04.1989 to make the payment but instead of complying, he filed a suit for permanent injunction on 17.04.1989, which prima facie shows that he wanted to avoid payment accrued towards him. In the written reply, it was the claim of the CDA that the respondent has already made construction and removal of electric poles was just a lame excuse with malicious intent. This stance of the appellant Civil Appeal No. 1120/2009 6 CDA could not be denied by the respondent. The respondent had also filed stay application in the earlier suit but the same was dismissed on 11.07.1990. This suit was ultimately dismissed as withdrawn vide order dated 22.02.1994. It appears that the only purpose of the respondent was to evade payment while buying time. Even after dismissal of his stay application on 11.07.1990, he did not pay any installment. The proceedings before the Civil Court in the earlier suit continued for a period of five years and when the respondent saw that he would not be able to get a favourable order, he withdrew the suit and approached the Federal Ombudsman. The only basis on which the Federal Ombudsman in its letter dated 26.09.1994 had directed rescheduling was that the Vice Chairman CDA had already agreed vide para 89/ante of noting portion dated 01.01.1994 that the case of the respondent deserves re-scheduling. However, we have noted that although the Vice Chairman CDA was of the view that the case of the respondent deserves rescheduling but the same was without any approval of the CDA Board. From the noting portion, it is clearly apparent that the proposal of the Vice Chairman was resisted by the other members rather the same was not approved. However, so far as the payment of delayed charges amounting to Rs.26,01,099/- is concerned, the CDA Board duly gave its permission, which is available at page 162 of CMA No. 503 of 2020. So far as the plea of the appellant’s counsel that the subsequent suit filed by the respondent was hit by res judicata, we are reluctant to make any observation regarding this aspect because we have been informed that the lease period is going to expire on 15.12.2020, hence, any finding at this stage would be a Civil Appeal No. 1120/2009 7 futile exercise whereas the case of the respondent is squarely a case of high handedness against a statutory authority. This Court cannot lose sight of the fact that both the courts below have misread and misinterpreted evidence as well as clause (6) of the agreement and came to the wrong conclusion. 8. For what has been discussed above, we are of the considered view that the judgments of the two courts below suffer from misreading and non-reading of the evidence. Consequently, we allow this appeal and set aside the impugned judgments. 9. The above are the detailed reasons of our short order dated 07.12.2020. JUDGE JUDGE JUDGE Islamabad, the 7th of December, 2020 Approved For Reporting Khurram

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IN THE SUPREME CO-URT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Nasir-ul-Mulk, HCJ Mr. Justice Amir Hani Muslim Mr. Justice Ijaz Ahmed Chaudhry Civil Appeals No.1122, 1123, 1107 of 2013 & 173 and 174 of 2015. (On appeal from judgment dated 9.5.2013 of the Peshawar High Court, Peshawar, passed in W.Ps.No.2987, 2764 of 2011 & 818-P/2012). And against judgment dated 10.9.2014 of the Peshawar High Court, Abbottabad Bench, passed in W.Ps.No.3219 & 475-P of 2014). The Commandant, Khyber Pakhtunkhwa Constabulary, Headquarters Peshawar and another. …Appellants. (in all Appeals) VS Muhammad Nasir and others. (in C.A.No.1122/2013). Sarad Khan and others (in C.A.No.1123/2013). Muhammad Arif and others (in C.A.No.1107/2013). Najeebullah and others (in C.A.No.173/2015). Zakirullah and another (in C.A.No.174 of 2015) …Respondents. For the Appellants: Ms. Shireen Imran, ASC. Syed Rafaqat Hussain Shah, AOR. (in C.As.No.1122, 1123 and 1107 of 2013). Mian Shafaqat Jan, ASC. Mr. M.S. Khattak, AOR. (in C.As.No.173 & 174/2015). For the respondents: Hafiz S.A. Rehman, Sr.ASC. 1-40 in C.A.No.1122/2013) 1-34 in C.A.No.1123/2013) 1-18, 20-25, 27, 28, 30, 31 Mr. Abdul Latif Afridi, ASC. 33, 35, 37, 38, 40, 41, 43-51, 53-65 in C.A.No.173/2015 and for Respondent No.1 in C.A.No.174/2015). Date of hearing: 31.3.2015. C.As.No.1122/13 etc. 2 JUDGMENT AMIR HANI MUSLIM, J. – The relevant facts for the purpose of disposal of these Appeals are that the Appellants were posted in different Platoons of Frontier Constabulary which were deployed in different areas of F.R Peshawar and F.R Kohat. They were dismissed from service on the allegations of insubordination and cowardice. The Respondents filed Appeals before the Federal Service Tribunal, Islamabad, which were allowed, by various judgments passed on different dates and they were reinstated in service with direction to the Appellants to hold de novo inquiries against them and conclude the same within four months, providing them full opportunity of hearing. 2. After receipt of the judgments of the Federal Service Tribunal, the Appellants without formally reinstating the Respondents, conducted de novo inquiry in the light of directions of the Tribunal and dismissed all the Respondents from service. The record shows that a second de novo inquiry upon the direction of the Tribunal was conducted against some of the Respondents, but they too were dismissed. The record further reveals that even 5th de novo inquiry was conducted against some of the Respondents, who were dismissed after such inquiries. 3. Feeling aggrieved, this time the Respondents approached the High Court, pleading therein that the orders of dismissal from service were illegal and passed without affording them opportunity of hearing. The learned High Court allowed all the Writ Petitions holding as under:- “In case in hand, no doubt serious allegation were levelled against the Petitioners but the standard of proof as well as C.As.No.1122/13 etc. 3 the procedure adopted by the respondents, which is otherwise too noticeable, from the comments filed by respondents before this Court, without proper documentation and proper and elaborate answer to the objections raised by the petitioners in their writ petitions give no other reference but to hold that dismissal orders resulted into miscarriage of justice. The remand of these writ petitions would serve no good purpose too as respondents have already conducted a number of inquiries against the petitioners and another de novo inquiries would do nothing except to increase more agonies while petitioners have already suffered for more than four years which was a sufficient punishment for any lapses on their part (if any). 30. This while allowing these writ petitions, we set aside the impugned orders of dismissal of the petitioners from their services and order their re-instatement into service from the date when they were dismissed with all consequential benefit of the posts from the said date except the salary as there is no proof that petitioners remained jobless for the whole duration of their dismissal. 4. The Appellants challenged the judgments of the learned High Court before this Court and leave was granted in these appeals, inter alia, to consider whether the Respondents are Civil Servants. Hence these Appeals. 5. The learned Counsel for the Appellants has contended that the Respondents are Civil Servants and the jurisdiction of High Court was barred under Article 212 of the Constitution. He submitted that once the Respondents had obtained relief from the Federal Service Tribunal, they could not have approached the High Court for the same relief. He next contended that the findings of the High Court were erroneous on the point that the Appellants had failed to comply with the provisions of Rule 18 of the North West Frontier Constabulary Rules, 1958. In support of his C.As.No.1122/13 etc. 4 submissions, he has relied upon the case of I.G Frontier Corps and others vs Ghulam Hussain (2004 SCMR 1397). 6. On the other hand, the learned Counsel for the Respondents have contended that the Respondents are not Civil Servants and their terms and conditions of service are regulated by the North-West Frontier Constabulary Act, 1915, and the Rules framed there-under. They contended that the learned High Court did have the jurisdiction to adjudicate upon the matters relating to terms and conditions of service of the Respondent. They next contended that the Appellants had recorded findings in violation of the procedure prescribed under Rule 18 of the North West Frontier Constabulary Rules of 1958 (hereinafter referred to as the Rules of 1958), therefore, the learned High Court was justified in ordering their reinstatement. 7. The Respondents’ Counsel next contended that the Appeals are barred by time and should have been dismissed on the point of limitation, as the grounds taken for condonation of delay are not plausible. 8. We have heard the learned Counsel for the parties at length and have perused the record. The Appellants are not Civil Servants as their terms and conditions of service are regulated by the provisions of the North West Frontier Constabulary Rules of 1958. The case law cited by the learned Counsel for the Appellants is not relevant after the judgment of this Court in the case of Muhammad Mubeen-us-Salam and others vs. Federation of Pakistan (PLD 2006 SC 602), where this Court has held that the status of a Civil Servant cannot be conferred on an employee of the organization by a deeming clause which has its own statutory service Rules. The terms and C.As.No.1122/13 etc. 5 conditions of service of the Respondents are regulated by the Act of 1915 which authorizes the Appellants to frame Rules. The Rules were framed in 1958 and are duly notified which regulates the terms and conditions of service of the Respondents. The plea of the Appellants that the Respondents are Civil Servants is without force in view of the judgment in the case of Muhammad Mubeen-us-Salam and others (supra) 9. The contention of the learned Counsel for the Appellants that proper procedure was followed while dismissing the Respondents from service, we have examined the procedure provided in Rule 18 (ibid) and the material brought on record by the parties. The orders which were impugned before the learned High Court are indicative of the fact that procedure as defined in Rule 18 of the Rules of 1958 was not followed. Even the learned High Court has observed in the impugned judgment that de novo inquiries were conducted by the Appellants without following the procedure provided in Rule 18 of the Rules of 1958. Once the learned High Court has held that the procedure prescribed in Rule 18 (ibid) has not been followed while dismissing the Respondents from service, it should have remanded the matter to the department after reinstating the Respondents in service for de novo inquiry. 10. We, therefore, while partly allowing these Appeals remand the matters to the departmental Authority of the Appellants to hold de novo inquiry after reinstating the Respondents in service, by strictly following the procedure provided in Rule 18 of the Rules of 1958 and pass appropriate orders within four months from the date of communication of this judgment. C.As.No.1122/13 etc. 6 11. Since the points raised in the Appeals are of public importance, therefore, the delay in filing the Appeals is condoned on the grounds taken in the Applications for condonation of delay. The above are the reasons for our short order of even date which reads as under:- “For reasons to be recorded later, these appeals are partially allowed and the impugned judgments of the High Court are set aside to the extent of setting aside the order of dismissal of the respondents by the Commandant Frontier Constabulary. However, since the procedure laid down in Rule 18 of the NWFP Frontier Constabulary Rules, 1958, had not been followed during the inquiry conducted against the respondents, a de novo inquiry according to the said Rule may be conducted against the respondents. In order to hold the inquiry the respondents have to be reinstated. Since three inquiries have already been held, the fresh inquiry shall be concluded within a period of four months.” Chief Justice Judge Judge Islamabad the, 25th March 2015. Approved for Reporting. Sohail/**

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE GULAR AHMED MR. JUSTICE MAQBOOL BAQAR CIVIL APPEAL NO.1125 OF 2007 (On appeal against the judgment dated 18.1.2005 of the High Court of Sindh, Karachi passed in CP No.D-516 of 2004) The Federation of Pakistan and others … Appellants Versus M/s Delta Innovations Ltd. … Respondent For the appellants: Dr. Farhat Zaffar, ASC. Raja M.Iqbal, ASC Mr.Asaf Fasihuddin Verdak, ASC Raja Abdul Ghafoor, AOR. For the respondent: Mr.Tariq Javed, ASC. Date of hearing: 21.4.2015 JUDGMENT MAQBOOL BAQAR, J.- Through the above appeal the appellants have assailed the judgment dated 18.1.2006 of a learned Division Bench of the High Court of Sindh, Karachi whereby Constitution Petition No.D-516 of 2004, filed by the respondent, was allowed. 2. The respondent is engaged in the business of manufacture and assembly of motorcycles in Pakistan. For the said purpose, he imports parts/components of motorcycles. The controversy in the matter is, as to whether the parts/ components imported by the respondent for manufacture and assembly of his motorcycles are amenable to custom duty @ 25% ad-voleram under PCT heading 87.14, as claimed by the respondent, or @ 90% as prescribed under PCT heading 87.11, as contended by the appellants. 3. The respondent has contended that since he imported parts/components of motorcycles that fall within PCT heading 87.14 which provides for duty @ 25% ad-voleram and do not fall within the description of PCT heading 87.11 which provides for duty @ 90% ad-voleram, his consignments are chargeable to duty @ 25% ad-voleram only. 4. It is indeed true that parts/accessories of vehicles, including that of motorcycles are chargeable to duty as prescribed under PCT heading 87.14, but at the same time PCT heading 87.11, which provides for duty on motorcycles @ 90% ad-voleram, also provides for 30% exemption on such duty in respect of components for manufacturing of motorcycles in terms of SRO No.436(1)/2001 dated 18.6.2001, as follows:- “Assessable rates on account of Exemption or Regulatory Duty etc. Exemption: (a) Components for the manufacture of motorcycles falling under heading 87.11 [See S.R.O.No.436(1)/2001, reported as PCTL 2001 St.950] 30% ad.val” And therefore, it can clearly be seen that prescription under PCT heading 87.14 is not available to parts/components imported for the manufacture/assembly of motorcycles and such consignments are amenable to duty under heading 87.11, however, with partial exemption, where the same is available in terms of SRO 436(1)/2001, whereas the duty provided under heading 87.14 is for commercial imports only. The above arrangement/scheme as shall be discussed herein later has been designed to encourage indigenization of the local automotive industry. 5. The respondent, in view of the foregoing, cannot successfully claim to be falling under PCT heading 87.14 and his subject imports are clearly chargeable to duty under heading 87.11. He may, however, avail exemption under the aforesaid SRO upon meeting the pre-requisite therefor and if he qualifies for the same. 6. We have noted that contrary to his present stance, that duty on his imports is leviable under heading 87.14, the respondent, way back in the January 2003, has himself applied for availing the concession/partial exemption under the aforesaid SRO, and was in fact so keen to avail the same that he obtained an order from the learned Lahore High Court for issuance of the requisite survey certificate to enable him to avail the SRO, through writ petition No.307 of 2004, and in pursuance of the said order, a provisional survey certificate was issued to the respondent. 7. Since, as noted above, the respondent has been issued requisite survey certificate and has also obtained a deletion programme in terms of the aforesaid SRO, and since the appellants have alleged violation and non-adherence to the terms of the SRO. We first need to examine the relevant aspects of the SRO and note the allegations, before issuing any directive in the matter. 8. According to the appellants, the Government of Pakistan in order to promote indigenization of automotive industry, introduced concessionary regime through SRO No.436(1)/2001 dated 18.6.2001. In terms of the said SRO, and subject to certain conditions prescribed thereby, the automotive industry has been granted partial exemption in customs duty on their import of components for the vehicles manufactured by them. To avail the above concession, the recognized assemblers has to obtain an approved deletion programme from Engineering Development Board (EDB), which programme is devised after a survey of the manufacturing facility by the Federal Board of Revenue, whereupon a survey certificate is issued. The exemption is granted in respect only of such components which are not manufactured locally and are imported for the manufacture of vehicles falling under PCT heading 87.11, including motorcycles. Amongst the various conditions prescribed under the SRO is the condition that manufacturer shall chalk out an indigenization programme spreading over a maximum period of five years, within which period, he shall achieve such minimum indigenization of the manufacture of vehicle as approved by the indigenization committee of the EDB and that in case of any default in the indigenization programme, the components imported in violation of the indigenization programme shall attract statutory duty chargeable on the relevant CBU vehicles. 9. The appellants, have alleged that the respondent imported parts/components as an exempted importer and got them cleared as spare parts @ 25% duty, and it was only after they realized that the customs authorities are no more oblivious of his clandestine import of CKD kits, the respondent approached EDB and the FBR and applied for provision of deletion programme and the survey certificate. The respondent was issued provisional survey certificate along deletion programme on 13.3.2004. However, instead of observing the said deletion programme, the respondent again attempted to clear his goods on lower rate of duty of 25% instead of 30% as provided under the aforesaid SRO. It is further alleged that through the consignment in question, the respondent has imported Main switch assembly R/L Chain, and Handle Bar Pipe upper/lower, to be used in the assembly of motorcycles and claimed assessment thereof under tariff head 87.14 which according to the appellants is prescribed for commercial import and not for the industrial import, and that the said consignment, if not covered under the aforesaid SRO is chargeable to duty @ 90%. 10. In the circumstances, and having already held that the parts/components being imported by the respondent are chargeable to duty under PCT heading 87.11 and that the concession under the SRO 436(1)/2001 shall only be applicable to the respondent in case he fully adhere to the terms and conditions thereof. We, feel it appropriate to remand the matter to the concerned adjudication office of the FBR to decide the same accordingly. Judge Judge Judge Islamabad the 21st April 2015 (Aamir Sh.) ‘NOT APPROVED FOR REPORTING’

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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 Umar Ata Bandial Civil Appeals No.1125 & 1126 of 2014. (On appeal from judgment of Lahore High Court, Rawalpindi Bench dated 10.4.2014, passed in RFAs No.144 & 145 of 2003, respectively) Sheikh Muhammad Ilyas Ahmed, etc (in CA-1125/14) Hamid Bashir, etc (in CA-1126/14) …Appellants Versus Pakistan through Secretary Ministry of Defence, Islamabad, etc … Respondents For the appellant: Mr. Altaf Elahi Sheikh, Sr. ASC For the Federation: Mr. Sohail Mehmood, DAG. Sqd. Ldr. Farhat Rafiq. Date of hearing: 29.10.2015 JUDGMENT Anwar Zaheer Jamali, C.J. – For the reasons set out in the applications for condonation of delay, the delay in filing of these appeals is condoned and the appeals are taken up for hearing on merit. 2. At the outset, learned ASC for the appellants has made a statement at the bar that in view of announcement of judgment by this Court today in connected Civil Appeals No.1120 to 1124 of 2014, the appellants are not pressing these appeals for seeking further enhancement in the amount of compensation, but only to the extent of non awarding of interest on the amount of compensation, as mandated C.A No.1125/2014, etc 2 under section 34 of the Land Acquisition Act, 1894 (in short “the Act of 1894”), which has been withheld for no valid reasons. 3. A bare reading of above referred provision of the Act of 1894 reveals that awarding of such interest is statutory in nature, which cannot be withheld. Thus, the appellants are fully entitled for grant of compound interest at the rate of eight percent per annum from the date of taking possession of acquired land till the date of payment of its compensation, but for no valid reasons, such relief has escaped the sight of the two Courts below. 4. This being the position, these appeals are partly allowed to the extent that the appellants will also be entitled for compound interest at the rate of eight percent per annum from the date when possession of the acquired land was taken over from them till the time, compensation in terms of the impugned judgment dated 10.4.2014, is paid to them. Islamabad, 29th October, 2015. Approved for reporting. تﻗادﺻ Chief Justice Judge Judge

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR Civil Appeal No.1127 of 2011 Against judgment dated 26.05.2009 passed by the Peshawar High Court, Peshawar in T.R. No.85 of 2007. Commissioner of Income Tax (legal) Regional Tax Officer, Peshawar. …Appellant(s) Versus Safeer Jan …Respondent(s) For the Appellant(s): Mr. Rehman Ullah, ASC For the respondent(s): Syed Mudassar Ameer, ASC Date of Hearing: 05.11.2019 O R D E R IJAZ UL AHSAN, J.- This appeal by leave of the Court is directed against a judgment of the Peshawar High Court, Peshawar dated 26.05.2009 (“impugned judgment”). Through the impugned judgment, Income Tax Reference No.85 of 2007 filed by the appellant was dismissed. 2. Leave was granted by this Court on 13.12.2011. For ease of reference, the leave granting order is reproduced below: “Leave of the Court is sought on the ground that where the statute has provided a mode and mechanism for money transaction any side way or by way to defeat such mode and mechanism would tend to defeat the soul and spirit of the law. CIVIL APPEAL NO.1127 OF 2011 2 We, in this view of the matter, grant leave to consider the point mentioned above.” 3. The brief facts necessary for decision of this lis are that the Respondent is an individual deriving income from salary and agriculture. Return was filed declaring the income at Rs.65,000/- for the assessment year 2001-02 and Rs.230,000/- for the assessment year 2002-03. In view of the fact that the declared income was not supported by documentary proof and it was found that the source of income and investment had swelled up exponentially, the Department came to the conclusion that the Respondent had concealed his income. Therefore, notice under Section 61 of the Income Tax Ordinance, 1979 (since repealed) [hereinafter to be referred as “the Ordinance”] alongwith detailed memo was issued. The Respondent contested the notice and produced wealth reconciliation statement, record of land revenue, accounts of M/s Khalil Enterprises (a partnership Firm), gift deeds from Mrs. Jani Begum, Mr. Ali Raza, Ms. Jan Parwana and Mrs. Sarwat Mehmood. The said documentation was produced to justify the accretion of Rs.11,490,640/-. The Taxation Officer did not accept the contention of the Respondent regarding withdrawal of the amount of Rs.2.9 million from the Firm and added the same under Section 13(1)(aa) of the Ordinance. Similarly, the amount of gifts received from various members of the family was also added under Section 12(18) of the Ordinance. 4. As far as the addition of Rs.2.9 million withdrawn from the account of the Firm is concerned, it was found that CIVIL APPEAL NO.1127 OF 2011 3 the said amount was the share of the Respondent out of the income of the Firm namely, M/s Khalil Enterprises. The said Firm was an existing assessee of the Circle. The amount was fully explained as reflected in the Wealth Statements and Wealth Reconciliation Statements. Since the Respondent had fully explained the amount in question as his share out of the income of the Firm that accumulated over the years. This fact was duly supported by the record including audited balance sheet showing that the said amount was fully tax paid. Consequently, no addition under Section 13(1)(aa) of the Ordinance could be made. The said issue is not before us. 5. As far as the amount gifted to the Respondent by other share holders of the Firm through gift deeds executed between the partners is concerned, the Assessing Officer had added the said amount under Section 12(18) of the Ordinance for the reason that the transaction had not been undertaken through banking channels. The said finding of the Taxation Officer was challenged before the Commissioner of Income Tax (Appeals), who set aside the same, vide order dated 15.09.2005. This order was upheld by the Income Tax Appellate Tribunal and was not disturbed by the learned High Court. 6. The learned counsel for the Appellant has repeated the same argument to the effect that the Taxation Officer was justified in adding the amounts allegedly received by the Respondent by way of gifts from other partners of the CIVIL APPEAL NO.1127 OF 2011 4 Firm in view of the fact that the transactions in question were not through banking channels. 7. We have heard the learned counsel for the parties and examined the record. Section 12(18) of the Ordinance appears to be relevant in the present case. For ease of reference, the said provision of law is reproduced below: “Where any sum claimed, or shown, to have been received as loan or advance or gift by an assessee during any income year commencing on or after the first day of July, 1998, from any person, not being a banking company, or a financial institution notified by the Central Board of Revenue for this purpose, otherwise than by a crossed cheque drawn on a bank, or through a banking channel from a person holding a National Tax Number, the said sum shall be deemed to be the income of the assessee for the said income year chargeable to tax under this Ordinance.” 8. A plain reading of Section 12(18) of the Ordinance shows that the said provision is attracted when loans, advances and gifts are received in cash. However, in the case before us, admittedly, no cash exchanged hands. Members of the AOP had only authorized the Respondent to withdraw a certain amount from their share in the AOP. As such no cash had been paid or received which fact has clearly been mentioned in the gift deeds executed between the partners. The transaction was ex facie reflected in book entries made in the records of the AOP. Further, the language of the gift deeds is clear that the amount gifted was liable to be withdrawn by the donee (Respondent) from the share of donors in M/s Khalil Enterprises which further lends support to the findings recorded by three lower fora that only a right was given to the Respondent to withdraw the amounts in question from time CIVIL APPEAL NO.1127 OF 2011 5 to time from the share of the donors in the AOP and that no transaction which could be interpreted as immediate and actual transfer of funds had taken place. 9. This being the position, we are in no manner of doubt that the provisions of Section 12(18) of the Ordinance were not attracted in this case and the Commissioner of Income Tax as well as the Income Tax Appellate Tribunal and the learned High Court were correct in recording findings to that effect. Learned counsel for the Appellant has not been able to persuade us to take a different view from the one taken by the lower fora. 10. For the afore-noted reasons, we do not find any merit in this appeal. The same is accordingly dismissed. No order as to costs. JUDGE JUDGE JUDGE ISLAMABAD, THE 05.11.2019 ZR/* ‘Not Approved For Reporting’

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE DOST MUHAMMAD KHAN Civil Appeal No.1129 of 2013 Against order dated 04.4.2012 passed by Lahore High Court, Lahore in W.P. No.3974 of 2005 Major ® Pervez Iqbal Appellant(s) Versus Muhammad Akram Almas, etc. Respondent(s) For the Appellant(s): Mian Ashaq Hussain, ASC Ch. Akhtar Ali, AOR For Respondent No.1: Mian Asrar ul Haq, Sr. ASC For Respondent No.3: Tehseen Sadiq, Addl. Commissioner (FBR) For Respondent No.5: Nemo Date of Hearing: 10.01.2017 JUDGMENT Mushir Alam, J-. Appellant has impugned order dated 04.4.2012 whereby the learned Judge in Chambers of the Lahore High Court, Lahore dismissed the CMA No.2565 of 2009, under section 12(2) of the CPC, challenging the judgment of the very Court dated 25.4.2007, whereby Writ Petition No.3974 of 2005, filed by one Muhammad Akram Almas, Respondent No.1 herein, seeking writ of mandamus, against the Income Tax Authorities to issue sale certificate and possession of the property of tax defaulter, purchased by him in open auction and, further direction to the Military Estate Officer (MEO) and others to affect mutation of said property in his favour, which was allowed. 2. Leave in the matter was granted vide order dated 5.9.2013, which reads as follow:- “Submits that respondent No.1 filed a constitution petition seeking a direction that the Income Tax Department should issue a sale certificate in his favour pursuant to the auction of petitioner’s property measuring 7 Kanals at a paltry amount of Rs.20,54,047/- Civil Appeal No.1129 of 2013 2 not withstanding the fact that the sale in auction had abated in view of Rule 150 read with Rule 111 of the Income Tax Rules, 1982; that respondent himself gave incorrect address of the petitioner in the writ petition filed by him, on account of which petitioner was neither served nor heard by the learned High Court while passing the judgment dated 25.4.2007. 2. Having heard petitioner’s learned counsel at some length, leave is granted inter alia to consider the issue raised.” 3. In order to appreciate the controversy raised in the instant appeal, it would be necessary to recapitulate facts forming matrix of controversy. 4. Appellant, adjudged tax defaulter, after service of a show cause notices as required under the law, he was arrested on 22.8.2000; he was released on commitment to clear the dues in installments. However, on his failure to adhere to such payment schedule, he was again arrested and produced before the Tax Recovery Officer (TRO) on 23.12.2000. The appellant in order to earn his release, per rules disclosed the property subject matter of instant proceedings, gave consent in his own writing for the attachment and auction of the property, for the recovery of tax dues, as a result thereof, subject property was attached and put to auction after fulfilling all the requirements of Rules 141 & 142 of IT Rule, 1982. Auction succeeded second time and the respondent No.1 was declared successful on 31.5.2001, entire amount of Rs.64,25,000/- was deposited within time. Auction purchaser also paid additional amount of Rs.1,92,750/- as gain tax on the sale of this property, which otherwise was payable by the appellant. 5. From the record it seems that Military Estate Officer (MEO), requested for the deferment of the sale on the ground, inter alia; that the property has not been mutated in the name of the appellant. The matter shuttled between the TRO, MEO and Station Commander Head Quarter, Sialkot Cantt without any resolution. From the record it appears that the appellant succeeded in obtaining a decree dated 21.12.1994 in a Civil Suit No.761/1993, for specific performance in respect of subject property held on old grant by the previous owners. In execution proceedings, conveyance deed dated 2.3.2000 was executed in his favour, however, for obvious reasons he Civil Appeal No.1129 of 2013 3 did not followed up his application for the mutation of subject property in his favour from the MEO, apparently, for this reason his name was not recorded in the General Land Register (GLR) maintained by the MEO, which provided a cause to the MEO, to make request to defer the auction. 6. Respondent No.1, when failed to obtain the sale certificate from TRO, needed for effecting mutation of the property in his name, as a last resort filed Writ Petition No.3974 of 2005, which as noted above was allowed on 25.4.2007 and the Income Tax Authorities were directed to issue sale certificate, which was issued in favour of the Respondent No.1, on 2.5.2007. MEO was also directed to consider the application for mutation of the auction purchaser in accordance with law. MEO unsuccessfully challenged the order of the High Court, before this Court through Civil Appeal No.529-L of 2009, which was dismissed vide order dated 20.7.2011; however, right of the appellant to pursue his Application under section 12(2) CPC; (filed on 01.6.2009) then pending before the learned Lahore High Court was preserved. The application, was ultimately heard and dismissed, vide impugned order, essentially on the ground that the appellant had neither challenged nor, availed the remedy against the auction in terms of Rule 127 of Income Tax Rules, 2002 (contemporary Rule 106 of IT Rules 1982). 7. Mian Ashiq Hussain, learned ASC appearing for the appellant, vehemently contended that on the application made by the MEO/Station Commander, the TRO had deferred the sale vide order dated 30.6.2001 available at page No.86 of the main paper book, which according to learned ASC amounted to setting aside of the auction sale in terms of Rules 111, 141 and 150 of IT Rules, 1982 requiring fresh proclamation, which was not issued. Therefore, auction if any, is of no consequences. To a specific query of the Court, learned counsel candidly conceded that the appellant did not challenge the auction sale held on 31.5.2001. He however, maintained that under the law auction sale could be challenged by any person and in instant case it was challenged by the MEO, in accordance with IT Rules, 1982. It was next urged that, impugned judgment of the High Court is a result of fraud and misrepresentation, correct address of the appellant was not disclosed by the Respondent No.1, appellant has not been heard, impugned judgment is liable to be setaside. Civil Appeal No.1129 of 2013 4 8. Mian Asrar ul Haq, learned Senior ASC appearing for the respondent No.1 vehemently opposed the appeal. According to him auction was held with the consent of appellant. Auction, succeed in second attempt on 31.5.2001. Respondent No.1/Auction purchaser had deposited the entire sale consideration within time. It was urged that since the auction purchaser was denied the sale certificate on the intervention of MEO, on wholly unjustified grounds, who otherwise had no interest in the property, therefore he was compelled to file writ petition, which was allowed. It was argued that appellant consented to the attachment and auction of subject property. According to him, Sale Certificate was issued on 2.5.2007 on the directions of High Court; appellant had a right to challenge the auction/sale within 30 days from the date thereof under the IT Rules 1982, which he failed. He cannot be allowed to challenge the auction, through ‘collateral proceedings’ under section 12 (2) CPC filed on 1.6.2009 after more than 8 years. 9. Mr. Tehseen Sadiq, Additional Commissioner (FBR) representing Tax Authorities, also supported the impugned order. According to him, attachment and auction of the appellant’s property was carried out strictly in accordance with Income Tax Act, 1979 and IT Rules, 1982. The appellant was given several opportunities to clear his dues, which he failed. Appellant volunteered the attachment and auction, which was held twice, to his knowledge, which he never challenged before the TRO and or the hierarchy provided under the IT Rules 1982. 10. We have heard the arguments and perused the record. Admittedly appellant was adjudged a tax defaulter, Certificate to such an effect in terms of sub section (1) of section 93 of the Income Tax Ordinance, 1979 read with Rule 100 of the IT Rules 1982 was issued by the Income Tax Officer to the TRO, to effect the recovery, by attachment, arrest and sale of the property of the defaulter/Appellant. There is also no dispute as to the service of the show cause notice under section 93 (1) of Income Tax Act, 1979 read with Rule 162(1) of the Income Tax Rules, 1982. It is not denied by the appellant that he was arrested and he agreed to pay dues in installments, which commitment he could not adhered. It is a matter of record that he was again arrested and produced before the TRO on 23.12.2000 and, in order to earn his release, the appellant disclosed his whole of the Civil Appeal No.1129 of 2013 5 property and placed the same at the disposal of TRO for the recovery of tax dues in terms of Rule 167 (1) of IT Rules 1982, which reads as follows:- “167. Release--(1) The Tax Recovery Officer may order the release of a defaulter who has been arrested in execution of a Certificate upon being satisfied that he has disclosed the whole of his property and has placed it at the disposal of the Tax Recovery Officer and that he has not committed any act in bad faith.” The appellant in terms of above rule also authorised the TRO to auction the said property and recover the amount due, endorsement in his writing reads as under:- �� � � � م� �اذ ے�"  ��رذ � �ا� ۔� � دا�� ��� � � ٹ�� ل� ت� �ا٧٣  � م� ے� � � ٹ�� �ر�٢٠٠٠۔٠٣۔٠٢� �� ى�ر �  �ر � � �� � ى�ر � � Attach�ر� ��� � � ��ا� سا ۔ں�  سا � � ىر�ر �ا � �  �Auction � � سا ۔�� � ضا�ا �� � � ے  Attachment    �ا � "۔� �د� �د جآ د� � � � �� 11. Consequently, his property was attached second time, in terms of rule 137 of the IT Rules 1982. It is a matter of record that, an attempt to obtain stay from Civil Court failed and so also Lahore High Court in Civil Revision No.1261 of 2001 declined any indulgence to stay the auction vide order dated 7.06.2001. Subject property was auctioned on 31.5.2001; Respondent No.1 was declared the successful bidder. Appellant was fully aware of the auction, chose not to avail the remedy under Rule 111, 149 and or Rule 150 of IT Rules 1982 and did not challenged the auction till before 1.6.2009, that too in a collateral proceedings under section 12 (2) CPC. 12. In terms of scheme of IT Rules 1982, where no application is made for setting aside the sale of the attached property under Rule 149 or 150 of the Rules ibid; or where any such application is made and is dismissed, the TRO, in terms of Rule 152 ibid is obliged, on payment of entire bid amount, to confirms the sale, which than becomes absolute and consequently TRO is further obligated in terms of Rule 154 of the IT Rules 1982 to issue the Sale Certificate. Civil Appeal No.1129 of 2013 6 13. The Respondent No.1 being declared successful bidder having paid the entire bid amount in the sum of Rs.64,25,000/- on 14.6.2001 and further sum of Rs.1,92,750 as gain tax due and payable by the appellant. Respondent was denied sale certificate and became victim of brawl between the TRO and MEO, filed W.P No.3974 of 2005 dated 11.3.2005, before the Lahore High Court seeking writ of mandamus against the TOR and MEO, to perform their legal duties, which Writ Petition was allowed on 25.4.2007, consequently TRO issued Sale Certificate to the Respondent No.1 on 2.5.2007. 14. It may be observed that sub-section (4) of section 93 of the Ordinance, 1979 bestows on the TRO similar power as are vested in a Civil Court for the recovery of amount under a decree. Provisions contained in Chapter IX (Rules 99 to 190) of the IT Rules, 1982 are complete Code akin to provisions of Order 21 rule 82 to rule 104 CPC, whereby the tax defaulter and or any person having any right or interest in the property attached and or sold pursuant to attachment order for the recovery of arrears of tax, may seek stoppage of sale, (Rule 111 ibid) challenge such auction/sale, before the TRO, (as provided for under Rule 149 and 150 respectively of Rules ibid). Against any order of sale hierarchy of appeal under Rule 173, which is subjected to Revision under Rule 174 and Review under Rule 175 ibid; is provided, thus elaborate procedure for attachment and sale of immovable property of the defaulter and host of remedies pre and post auction/sale are provided under the Income Tax Rules, 1982. It is settled position in law that where special law provides elaborate mechanism and procedure to challenge certain action under the scheme of special law, recourse to general law and or challenge to such action, that too through collateral proceedings are not approved. Neither the Appellant nor any other respondents herein filed any application against the auction of the subject property within the contemplation of IT Rule 1982. In instant case rule 111 ibid, which may justify stoppage of sale, on satisfactory proof of payment of tax dues, before the hammer is struck down in favour of the highest bidder, was not availed by the appellant, thus it cannot be pressed into service. 15. Arguments of learned ASC for the appellant, that the objections filed by the MEO could always be treated as an application Civil Appeal No.1129 of 2013 7 under Rule 149 or Rule 150 ibid; are flawed for the simple reasons that sale under referred rules could only be annulled on meeting twin conditions set down therein; with a rider that such challenge is made within 30 days from the date of sale. First condition is the deposit of the amount mentioned in the proclamation of sale with 8% interest and second is to pay a sum equal to 10% of the purchase money to the purchaser, admittedly such conditions as noted herein were neither met by the MEO nor by the appellant, therefore, the objections of MEO, which even otherwise, were on altogether different premise, could not be treated as challenge to auction sale under the referred rules. The appellant cannot question sale on the ground of irregularity in service in terms of Rule 150 ibid; when he himself had authorised the attachment and sale of his property as noted above. It may be observed that any error or irregularity in or in publishing or conduct of sale of immoveable property in terms of Rule 134 does not vitiate sale. Even otherwise, all such grounds, if at all available could have been raised before the form and hierarchy provided under the IT Rules 1982 and not in collateral proceedings under section 12(2) CPC. 16. As noted above, elaborate provisions contained in Chapter IX of the IT Rules, 1982 are self contained code, providing elaborate procedure for the recovery of tax arrears, attachment, arrest and sale of property of defaulter and challenge to sale by the defaulter and or any other person having interest in the attached and sold property. Admittedly, the appellant who was adjudged tax defaulter in contested legal proceedings up to the High Court. Appellant failed to challenge the sale before a competent forum in the manner provided as discussed above, cannot be allowed to challenge the sale, in a collateral proceedings arising out of a writ of mandamus against the Income Tax Authorities and MEO for the issuance of Sale Certificate and effecting mutation in his name. 17. In this view of the matter, finding no merits in this appeal, it is accordingly dismissed. JUDGE JUDGE ISLAMABAD, THE 10th January, 2017 arshed/* Approved for Reporting

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Mian Saqib Nisar Mr. Justice Mushir Alam Mr. Justice Maqbool Baqar Civil Appeal No.1132 of 2007 Against judgment dated 08.11.2005 of High Court of Sindh at Karachi, passed in Constitution Petition.No.D-687 of 2004. Hyderabad Cantonment Board Appellant(s) VERSUS Raj Kumar & others Respondent(s) For the Appellant(s): Mr. Anwar Mansoor Khan, Sr. ASC For Respondents#7-12: Mr. Qasim Mir Jat, Addl. AG, Sindh Dr. Saeed Ahmed Qureshi, Focal person for Chief Secretary of Sindh Ms. Lubna Salahuddin, Addl. Secy. Local Government. Date of Hearing: 20.05.2015 JUDGMENT Mushir Alam, J-. Leave to appeal was granted on 17.04.2007 to consider the following:- “After hearing the learned counsel for the parties, we find that the question as to whether the Cantonment Executive Officer is empowered under Cantonment Act, 1924 to charge the service fee from the vehicles being used as public transport for use of the facilities provided for the convenience of passengers at halting places fixed under Motor Vehicle Ordinance, 1965 read with Motor Vehicle Rules, 1969 would require consideration in the light of relevant provision in the above referred statutes and the rules framed thereunder. Therefore, we grant leave in this petition to consider the above question.” 2. Backdrop forming matrix of instant appeal appears to be that the appellant-Hyderabad Cantonment Board levied parking fee on commercial vehicles plying within Hyderabad city on each and every stop i.e. general bus stand situated in the cantonment area of Hyderabad through its contractors, which action was successfully challenged before the High Court of Sindh through Constitution Petition No.D-687 of 2004 and a learned Division Bench of the High Court vide impugned judgment dated 08.11.2005, also reported as Raj Kumar v. Hyderabad Cantonment Board (2006 MLD 549), on C. A.No.1132 of 2007 2 examining various provisions of the Cantonment Act, 1924 including Sections 25, 60, 61, 62 and 200 thereof came to the conclusion that “since there was no provision in the Cantonment Act, 1924 empowering the Cantonment Board to charge parking fee, such levy was without lawful authority”. 3. Mr. Anwar Mansoor Khan, learned Sr.ASC, representing the appellant-Hyderabad Cantonment Board, has contended that the Appellant-Cantonment Board, has established Bus Stands at various halting places which maintain waiting rooms and wash rooms for ladies and gents and further facilities for the bus owners to park their buses for the purpose of collecting the passengers. It was urged that on account of such services, a nominal fee was imposed and was being collected through contractors. According to him, the Appellant-Cantonment Board, under Section 200 of the Cantonment Act, 1924 is fully empowered to impose such fee. To support his contention he has placed reliance on the case of Federation of Pakistan v. Durrani Ceramics (2014 SCMR 1630). It was urged that fee is charged in respect of services provided, therefore, no exception to it could be taken. 4. It may be observed that said case does not support the case of the appellant-Cantonment Board. In the cited case validity of Gas Infrastructure Development Cess Act, 2011 was successfully challenged in the High Court being ultra vires to the Constitution. On examining the legality of the Act, 2011 this Court came to a conclusion that subject Cess was not a tax and was not covered by the Entry relating to imposition of levy of tax under Part-1 of the Federal Legislative List, and it was accordingly held; not validly levied in accordance with the Constitution. 5. Mr. Anwar Mansoor, learned ASC for the Appellant- Cantonment Board has fairly brought to the notice of this Court a judgment of House of Lord reported as McCarthy & Stone (Development) Ltd. v. London Borough of Richmond Upon Thames (1994 SCMR 1393), which goes against the Appellant. In the cited case, the Appellant were charged fee under Section 87 (1) of the Local Government Planning and Land Act, 1980, which was unsuccessfully challenged before the Council, being beyond the C. A.No.1132 of 2007 3 scope of the referred Act of 1980, the Appellant failed in the Court of Appeals, which issue was then taken to the House of Lords. The House of Lords considered the legality of the policy of the Council of the respondent London Borough of Richmond upon Thames (the Council), which it adopted on 2nd July 1985 and under which it had made a charge for consultations concerning speculative development or redevelopment proposal between the developers and the Council’s. Developer engaged into preliminary consultation prior to making formal application for planning permission, he was charged. Such charges were paid twice for the consultation under protest, developer made unsuccessful representation before the Council followed by unsuccessful appeal before the Court of Appeals (1990 2 WLR 1294), which was challenged. House of Lords, on examining the power and function of the Local Authority came to a conclusion that fee within the contemplation of the Act, 1980 relates only to planning application and not to any pre-application inquiries or consultations. It was accordingly held that local government cannot charge for services unless it is required by statute to provide such services. 6. Charging provisions in any statute are strictly construed. It was conceded by the learned ASC for the Appellant- Cantonment Board that any pecuniary burden, by whatever nomenclature it may be inflicted may it be in the name of tax, cess, fee, toll, or rate etc could only be inflicted, provided it has a valid statutory sanction. 7. Mr. Anwar Mansoor Khan, learned Sr.ASC for the appellant has placed reliance on Section 200 of the Cantonment Act, 1924, which according to him provides legal backing for the subject fee. The said provision for ease of reference is reproduced as under:- “200. Levy of stallages, rents and fees.- A [Board] may- (a) charge for the occupation or use of any stall, shop, standing, shed or pen in a public market, or public slaughter-house, or for the right to expose goods for sale in a public market, or for weighing or measuring goods sold therein, or for the right to slaughter animals in any public slaughter-house, such stallages, rents and fees as it thinks fit; or (b) with the sanction of the [Competent Authority], farm the stallages, rents and fees leviable as aforesaid or any portion thereof for any period not exceeding one year at a time; or C. A.No.1132 of 2007 4 (c) put up to public auction, or with the sanction of the [Competent Authority], dispose of by private sale, the privilege of occupying or using any stall, shop, standing, shed or pen in a public market or public slaughter-house for such term and on such conditions as it thinks fit.” 8. Extraction of money in any form may it be a tax, cell, toll fee, charge or rate or levy by whatever nomenclature it is classified could be extracted by the government and or public authority under a valid legislative instrument by the competent legislature (one may refer to Article 70 read with Article 73 (1A)(3) (a), Article 77 read with Article 141 read with Entry No.54 of the Federal Legislative List). A bare perusal of the provision of Section 200 of the Act, 1924 as reproduced above, shows that it is “levy of stallages rent and fee” for providing stall, shop, standing shed, pen and for other defined commercial activities on the vendors dealing in goods and for the slaughter of animals in public market or public slaughter houses respectively and that too subject to sanction by the competent authority. Parking fee is not envisioned under the referred provision. Cantonment Board has no authority to enlarge the scope of charging section and include, conjecture and or read some activity which is not envisioned or is not the contemplation of the charging Section 200 ibid as relied upon by the learned ASC for the appellant-Cantonment Board. 9. In a case reported as “Exide Pakistan Limited Vs. Cantonment Board (2012 CLC 1124)”, imposition of “Shop Board Fee” under Section 200 of the Cantonment Act, 1924 was challenged. The High Court examined various provisions of the Act of 1924 and came to a conclusion that “Shop Board Fee” appears to be an entirely different genre of fee more akin to advertisement/Signboard [fee] of the shop, which did not fall within the contemplation of stallages, rent and fee within the sanction of Section 200 of the Cantonment Act, 1924.” 10. Learned counsel was not able to point out any other provisions of Cantonment Act, 1924 that could empower and or authorize the Cantonment Board to charge the subject parking fee. Mr. Anwar Mansoor Khan, learned ASC for the appellant- Cantonment Board, vainly attempted to argue that under the Cantonment Ordinance, 2002, the Cantonment Board is specifically empowered to levy parking fee in terms of Section 243 read with C. A.No.1132 of 2007 5 Entry No.9 of the first schedule which provides “fee for parking of vehicles on site provided by the Cantonment administration”. 11. Indeed, such power to impose parking fee is available under the Cantonment Ordinance, 2002. But it is of no avail to the Appellant for the simple reason that such Ordinance has not as yet been enforced. In terms of subsection (3) of section 1 of the Ordinance, 2002, the Ordinance, or any provision thereof, will become operational only on such date as may be notified by the Federal Government. Mr. Anwar Mansoor Khan has fairly conceded that no such notification has been issued so far. Such arguments failed before the High Court. That being the legal position, he cannot rely on any law to justify impugned parking fee, which is still in hibernation and not implemented as yet. No other contention was raised. No infirmity in the impugned judgment is found. 12. The appeal is accordingly dismissed. Judge Judge Judge ISLAMABAD, THE 20th of May, 2015 Not Approved For Reporting M.Zubair/*

{'id': 'C.A.1132_2007.pdf', 'url': ''}

{'id': 'C.A.1132_2007.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE IQBAL HAMEEDUR RAHMAN MR. JUSTICE MAQBOOL BAQAR CIVIL APPEAL NO.1137 OF 2008 (Against the judgment dated 25.4.2006 of the Lahore High Court, Lahore passed in LPA No.169 of 1968) M/s Beach Luxury Hotels, Karachi …Appellant(s) VERSUS M/s Anas Muneer Ltd. etc. …Respondent(s) For the appellant(s): Mr. Khalid Anwar, Sr. ASC Mr. M. S. Khattak, AOR For respondent No.1: Mr. Najam-ul-Hassan Kazmi, Sr. ASC Date of hearing: 19.11.2015 … JUDGMENT MIAN SAQIB NISAR, J.- This is an appeal filed against the judgment delivered by a division bench of the Lahore High Court in ICA 169 of 1968 in terms whereof the judgment delivered by a learned single judge of the High Court was set aside and the case was decided in favour of the present Respondent. CPLA No.665 of 2006 was filed against the said judgment. The Respondent appeared before this court and unsuccessfully opposed the grant of leave to appeal, inter alia, on the ground that an appeal lay as of right in the present case and hence leave to appeal should not be granted. It was, however, contended on behalf of the Appellant that the value at which the disputed property was transferred showed the transfer price as being Rs.44,790.0 which is below Rs.50,000 and on the basis thereof his objection was over ruled. A review petition has been filed against the said order. However, it is not necessary to re-examine the question as to whether the transfer price was below C.A.1137 of 2008.doc -: 2 :- Rs.50,000 or not since this court has already granted a moratorium in relation to such petitions. 2. On the merits, the main objection raised on behalf of the Respondent before us was that the order of the Chief Settlement Commissioner in terms whereof the matter was re-opened disregarded the fact that prior thereto Ordinance No.II of 1962 had come into force with effect from 13.1.1962 and in terms thereof the provision of sub- section (2) and (4) of Section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 stood omitted. It was accordingly argued that the Settlement Department did not have the jurisdiction to re-open the case. 3. The essential facts of the case may now be considered. The property known as Nedous Hotel was transferred by means of a public auction. The auction notice states that the evacuee property known as Nedous Hotel would be sold on 21.08.1961. The auction was to be conducted by the Additional Settlement Commissioner, Lahore and presided over by the Settlement Commissioner (in dispute). The highest bid was tendered by Mr. Avari (hereinafter referred to as the Appellant) in the sum of Rs.1,21,00,000/- and in consequence thereof a Permanent Transfer Certificate was duly issued to him in which the area of the property was specified as being 96 kanals, one marla and 12 sq. feet. The boundaries were also specified as being on the north , PIA plot, WPIDC plot, Transport House and CSC Office and in the south Upper Mall, on the east Al-Hamra Arts Council and on the west WAPDA House. The Appellant’s bid of Rs.1,21,00,000 had earlier been accepted by the Chief Settlement Commissioner on 7.9.1961. Although the permanent transfer certificate was issued on 6.10.1964 much prior thereto on 9.1.1962 the Appellant submitted a written application. By means of this letter it was submitted that at the time the possession of Nedous Hotel was given to him it was brought to the notice of the officer delivering possession that an area measuring approximately 530 sq. yards, or about 1½ kanals, belonging to Nedous Hotel and C.A.1137 of 2008.doc -: 3 :- lying between the Mall and the northwestern wing of the Hotel, had been enclosed by a wall and it was occupied by a service station. It was stated that at that time an assurance was given that the said area occupied by the service station would be recovered and possession handed over to him. It was further stated that the matter was also brought to the notice of the Settlement Commissioner to whom the letter was addressed and he repeated the same assurance. It was requested therefore that the appropriate action should be taken. Reliance was placed by the Appellant on a further letter as well dated 11th April which was addressed to the Chief Secretary, Government of the West Pakistan. This complained that his earlier letter had not evinced any response either from the Chief Settlement Commissioner or any other functionaries. The request was repeated that the said land should be handed over to him so that the total area of 96 kanals one marla and 12 sq. feet would be handed over to him. The Hotel was opened on 12th February 1962 as a going concern. Since the Government wanted the Hotel to start functioning urgently because of the shortage of accommodation the request was therefore made that the Chief Settlement Commissioner should hand over the area in question after an actual measurement and by removing the encroachment by M/s. Shahnawaz Limited, the occupant (i.e. Anas Muneer Limited, the Respondent) as soon as possible. 4. By means of a letter dated 29.1.1962 which was sent by the Settlement Commissioner to the Additional Settlement Commissioner the matter was re-opened. This letter is important and is reproduced below: “OFFICE OF THE CHIEF SETTLEMENT & REHABILITATION COMMISSIONER PAKISTAN 11-Egorton Road, Lahore No. 106-F&M-Reh/62 Dated 29.1.1962 From Settlement Commissioner (Industries) Lahore. To C.A.1137 of 2008.doc -: 4 :- Addl: Settlement Commissioner, Lahore. Sub:- Disposal of the big mansions & hotels Property Nos. S-19-R-85 known as Nedous Hotel, Upper Mall, Lahore. Two units bearing Nos. S-10-R-85A (Khasra No. 1048) and S-19-R- 85A (2) Khasra No. 1047 have been transferred to M/S Shahnawaz Serving station Ltd. The Mall, Lahore against one NS from. Only one unit could be transferred to then. The Unit No. S-19-R-85A(2) Khasra No. 1047 is a part of the Nedous Hotel which has since been auctioned. The transfer of this unit in favour of M/S Shahnawaz Ltd. is illegal and calls for immediate cancellation. 2. The Chief Settlement Commissioner, Pakistan has order that you may please re-examine the case and pass necessary or after hearing the parties under intimation to this office. 3. The relevant file of the Deputy Settlement Commissioner Lahore of this case containing pages 1 to 45 also sent herewith. DEPUTY SETTLEMENT COMMISSIONER (1) for, Settlement Commissioner (Industries) Lahore. No. 106-F-F&M-Reh/62 Dated ___________________1962 5. The foundation of the above letter is the clear cut legal position as set out in the Act in terms of which only one property could be transferred to a non-evacuee. The question, therefore, was whether the Respondent had obtained more than one property. If so, the transfer would be illegal and would lead to cancellation. 6. At this stage it would be appropriate to examine the title of the Respondent. The record indicates that the Respondent obtained a Provisional Transfer Order dated 8.1.1960. Apparently no permanent transfer order was ever issued to him. The Provisional Transfer Order issued by the Deputy Settlement Commissioner describes in the Schedule thereto the properties being transferred, as being not one but two properties. The said Schedule states that property No.S.E 19-R-85A and 85A(2), The Mall Lahore was being transferred. Subsequently the Respondent got the property numbers changed by the Deputy Settlement Commissioner to read as SE.19.R.85/A and SE.19.R.85/A(ii) instead. C.A.1137 of 2008.doc -: 5 :- 7. The record indicates that not merely were these two different properties but in fact even the owners were different. Prior to getting to the said properties allotted it appears that the Respondent was occupying the same in his capacity as a tenant. In this connection, it is necessary to refer to a letter dated 13.11.1956 (i.e. much before the transfer of ownership to the Respondent) which was issued by the Settlement Department to the Respondent which is important and relevant. The said letter is reproduced hereinbelow: No. DRC/ACS/RA/5961 Dated 13.11.1956 From M.S. Zaman Esq. M.A. (Alig) Deputy Rehabilitation Commissioner, (Rent and Repairs) Lahore. To The Shahnawaz Servicing Station Ltd. 1, Charing Cross, The Mall, Lahore. Sub: Recovery of Rent of property No. SE-19-R/85 A, Lahore. 1. Reference your letter dated 6-11-1958 on the subject noted above. 2. There are two different properties i.e. SE-19-R-85(A) and SE-19-R- 85 (E) belonging to two different owners named, K.S. Sathi and R.B.L. Jodhe Mal respectively. The rent of the properties has also been fixed separately @ Rs. 10/- p.m. and Rs. 83/5/- P.M. Gross. You are therefore requested to please pay the rent of the aforesaid properties separately. 3. All the amounts paid by you have been shown on the reverse of the rent bills which are enclosed herewith. Sd. M.S. Zaman Deputy Rehabilitation Commissioner, (Rent and Repairs) Lahore. Encl: Two Rent Bills. No. DRC/ACS/RA ____________ Dated Nov 1956 Copy to: The Rehabilitation Officer, Civil Lines, Lahore, for information. Deputy Rehabilitation Commissioner, (Rent and Repairs) Lahore. C.A.1137 of 2008.doc -: 6 :- The letter speaks for itself and leaves no doubt in the matter that these were two different properties belonging to two different owners and in relation to which rent was being separately paid to the Settlement Department by the Respondent. However, to proceed with the narration of events thereafter the matter was taken up by the Additional Settlement Commissioner who passed a detailed order dated 9.11.1965. 8. The properties which were transferred to the Respondent consist of a petrol pump located on Khasra No.1048 and measuring 13 Marlas. The other property consists of a service station measuring 1½ kanals located on Khasra No.1047 and it is the case of Appellant that this was an integral part of Nedous Hotel which is located on the said Khasra. The Additional Settlement Commissioner directed that necessary enquiries should be made with the assistance with Mr. Agha Ali Hussain, Land Acquisition and Control Officer, in relation to the questions involved of title and possession. He reported that the Appellant had been handed over possession in full except the segment in the possession of Shahnawaz Service Station i.e. on Khasra 1047. On behalf of the Appellant it was contended before him that, being an integral part of Khasra No.1047. the Respondent was not entitled to claim the said plot of 1½ kanal and, in any event, there was no question of his being entitled to two properties on the basis of one Application Form alone. 9. In reply various defences were raised by the Respondent. According to him the land bore one number while the construction thereon bore another number. In relation to the ownership question the Respondent produced copies of the tax assessments by the Municipal Corporation which showed property bearing No.85/A(i) to be owned by one Mr. Sobti which was assessed at Rs.108 and the other property namely, 85/A(ii) was owned by M/s. R.B. Ram Saran Dass and R.B. Jodha Mall Kuthalia which was assessed at Rs.720. It appears to us that this argument does not advance the cause of the Respondent in any manner whatsoever but on the C.A.1137 of 2008.doc -: 7 :- contrary demolishes it completely. Insofar as the entitlement of the Appellant is concerned, he contended that the Settlement Patwari had submitted a report dated 5.6.1963 according to which the Appellant was in possession of 96 kanals 17 marlas and hence was not entitled to any further land. We will examine this report, which is important, closely in a later part of this judgment. 10. The Additional Settlement Commissioner after hearing both parties came to the conclusion that there had been a multiple transfer of the same property in favour of both Shahnawaz Service Limited (the Respondent) as well as Mr. D.B. Avari (the Appellant). He however, wanted to satisfy himself further as to Mr. Avari’s entitlement and directed that a fresh examination of the same should be carried out by a team of five expert officials. He incorporated their findings in his order and we will further consider this at a later stage in this judgement. It will suffice to observe at this time that the report was in Mr. Avari’s favour. He then discussed the reliance by the Respondent on the earlier report of the Settlement Patwari and held that an examination of the said Patwari’s report did not render any assistance to the Respondent since the report was vague. In the circumstances the matter was decided in favour of the Appellant and the transfer in favour of the Respondent was cancelled. 11. Against this order an appeal was filed before the Settlement Commissioner which was dismissed by means of an order dated 25.3.1968. This also concluded that possession of Nedous Hotel which was delivered indicated that the small area in the possession of the Respondent should also have been handed over at the same time to him. He concluded that the area in dispute was an integral part of Nedous Hotel and also that, in any event, the Respondent was not entitled to two properties by any stretch of the imagination. 12. After the Respondent had lost in both forums before the Settlement Department he approached the Lahore High Court by means of Writ Petition No.423- C.A.1137 of 2008.doc -: 8 :- R-68. The case came up before a learned Single Judge who passed an order dated 22.5.1968 in terms of which the Settlement Commissioner was directed to produce the complete file of the allotment and disposal of the properties which he then proceeded to examine personally. On a perusal of the record he concluded that Property No.85-A(i) was owned by Mr. Sobti while the portion designated 85-A(ii) was owned by Mr. Jodha Mall and that the property owned by Mr. Sobti had an area of 12 marlas whereas the property owned by Mr. Jodha Mall was a separate property with an area of 1½ kanals. 13. It is material to note that it was conceded before him by the Respondent that the petrol pump was located on the property bearing No.85-A(i) while the Service Station (i.e. the disputed plot) was situated on 85-A(ii) and that the latter was enclosed by a separate boundary wall. He then examined the record further and came to the conclusion that the Respondent, on his own showing, was not entitled to the property in question for an additional reason as well. This was that it was admitted that originally on the plot there was no pacca construction and the katcha construction had disintegrated and it was he who had subsequently constructed the pacca room. He concluded therefore that insofar as the property in dispute, which was owned by Mr. Jodha Mall was concerned, it could not be classified as a “shop” in terms of section 2(12) of the Displaced Persons (Compensation and Rehabilitation) Act 1958 and hence could not be transferred thereunder to the Respondent. It was merely an evacuee plot of land. The petition was accordingly dismissed since the Respondent had failed to establish his entitlement to the plot in question. 14. The question of more than one shop or property being transferred to a person is covered by the Schedule to the Displaced Persons (Compensation and Rehabilitation) Act, 1958. If reference is made to para 9 of the said Schedule it will be seen that it provides as under: C.A.1137 of 2008.doc -: 9 :- 9. A shop in possession of a non-claimant displaced person and which the non-claimant desires to retain, shall be transferred to him on payment of the prevailing market value : Provided that not more than one shop shall be transferred to any one non-claimant under this paragraph : Provided further that if there is more than one applicant for the transfer of the same shop, the shop shall be transferred to the non-claimant who obtained prior possession. It is therefore clear that in no circumstances whatsoever could the Respondent have had more than one property transferred to him. 15. We now turn to the judgment of the learned division bench of the High Court which has been impugned before us. By means of this the Respondent’s appeal was accepted and the matter was decided in his favour. Before the learned division bench a new legal point was urged for the first time. Reliance was placed on Ordinance II of 1962 which was issued on 13th of January, 1962 and in terms of which by means of section 5 thereof, sub-section (2) and (4) of Section 20 were omitted. Section 20, as unamended is reproduced hereinbelow: 20. Revision.-(1) The Central Government at any time may call for the record of any case or proceeding under this Act in which the Chief Settlement Commissioner or a Settlement Commissioner or an Additional Settlement Commissioner or a Deputy Settlement Commissioner or an Assistant Settlement Commissioner has passed an order for the purpose of satisfying itself as to the correctness, legality and propriety of such order, and may pass such order in relatin thereto as it thinks fit. (2) The Chief Settlement Commissioner at any time may, and shall on being directed by the Central Government, call for the record of any case or proceeding under this Act in which a Settlement Commissioner or an Additional Settlement Commissioner or a Deputy Settlement Commissioner or an Assistant Settlement Commissioner has passed an order, for the purpose of satisfying himself as to the correctness, legality or propriety of such order, and may pass such order in relation thereto as he thinks fit. (3) A Settlement Commissioner specially empowered in this behalf by the Chief Settlement Commissioner may at any time call for the record of any case or proceeding under this Act in which an Additional Settlement Commissioner or a Deputy Settlement Commissioner or an Assistant Settlement Commissioner under his jurisdiction has passed an order, for C.A.1137 of 2008.doc -: 10 :- the purpose of satisfying himself as to the correctness, legality or propriety of such order, and may pass such order in relation thereto as the thinks fit. (4) An Additional Settlement Commissioner specially empowered in this behalf by the Chief Settlement Commissioner may at any time call for the record of any case or proceeding under this Act in which a Deputy Settlement Commissioner or an Assistant Settlement Commissioner under his jurisdiction has passed an order, for the purpose of satisfying himself as to the correctness, legality or propriety of such order, and may pass such order in relation thereto as he think fit. (5) No order under this section shall be passed revising or modifying any order affecting any person without giving such person a reasonable opportunity of being heard. In these circumstances it was submitted that the power to reopen the question of title had been taken away and hence the Settlement Department had no legal authority to interfere in the matter. 16. There is, however, an additional amendment which also took place. This was by means of Ordinance XIII of 1962 dated 17th of March, 1962. This amendment was effected with retrospective effect from 13th of January, 1962. Section 2 of the Ordinance provides that the following new section shall be inserted, and shall be deemed to have been always so inserted, as Section 7: “7. Savings. For the removal of doubts it is herby declared that omission by this Ordinance of sub-sections (2) and (4) of Section 20 and sub-sections (1), (1A) and 2) of Section 21 of the said Act shall not affect any case or proceedings the record of which called for under sub- section (2) of Section 20 of the said Act, or any review proceeding under sub-section (1) of Section 21 thereof, which was pending immediately before the commencement of this Ordinance: Provided that no revision or review under any of the provisions omitted by this Ordinance shall lie against any order made in any such case or proceedings.” 17. It will be recollected that, as narrated hereinabove, on 9th January, 1962 the Appellant had sought to have the matter re-opened. This was before the critical date C.A.1137 of 2008.doc -: 11 :- namely 13th January, 1962. But this fact is not sufficient to enable the Appellant to take advantage of the amendment. The further question which arises is at what point of time did the Settlement authorities actually take cognizance of the matter and decide to re-open the same. In relation to this the record is silent. All that we have on the record is a letter dated 29.1.1962 sent to the Additional Settlement Commissioner in terms of which it is stated that the Chief Settlement Commissioner has ordered that he should re-examine the case and pass the necessary orders after hearing the parties under intimation to this office. Thus it is manifest that the Chief Settlement Commissioner had passed an order prior to the said date. This order was obviously passed at some point of time between 9th January, 1962 and 29th January, 1962. However, this earlier order is not part the of record before us. In these circumstances, since it was the duty of the Respondent, which was seeking to rely on this for the first time, and that too at a belated stage, who should have made an endeavour to have the entire record brought before the court. Since he failed to do there is no factual foundation on which we can proceed to decide the point in the Respondent’s favour. Accordingly this finding of the learned division bench falls to the ground. 18. It is necessary to point out, however, that over and above the above aspect of the matter, there is an additional fact of the utmost importance. As pointed out earlier the Respondent only had a Provisional Transfer Order in his favour. This Provisional Order contains the following clause (vi) which is pertinent and is reproduced below: “(vi) The President shall be entitled to resume the whole or any part of the said property if the Central Government or any officer authorized by the Central Government in this behalf is at any time satisfied and records a decision in writing to that effect that the transfer of the said property or any other compensation in any form whatsoever under the aforesaid Act has been obtained by fraud, false representation or concealment of any material C.A.1137 of 2008.doc -: 12 :- fact on the part of the transferee or his predecessor-in- interest.” It can be seen that this is an independent power conferred on the Settlement Authorities, quite apart from the statutory power of revision. The Respondent only had a provisional title and that also was subject to the above mentioned condition. It necessarily follows that in case the Settlement Department found that he had made any false representation, or concealment of a material fact, or fraud, it would be entitled to resume the property. 19. Further support to the above is provided by a plethora of case law including numerous judgments of this court which state that in case of fraud or misrepresentation an inherent power vests in the Settlement Authorities to recall the impugned order. Indeed the learned division bench had itself recognized the existence of this power and specifically held that even independently of the power of revision this was an inherent power of the Settlement Department. The relevant passage of the judgment of the learned division bench is reproduced below: “The only ground and basis of reopening of the matter has been where the transfer had been procured and was result of fraud and misrepresentation. That is the import of the Chief Settlement Commissioner, Lahore vs. Raja Muhammad Fazal Khan and others (PLD 1975 SC 331). In the instant case however there is not even any allegation or fraud or misrepresentation addressed to the Appellant (i.e. the Respondent herein) in seeking the transfer of the property not to say of any material.” 20. We confess that we have read the above finding with great surprise. In fact, right from the beginning the only contention before the Settlement Authorities was the misrepresentation, or fraud, on the basis of which the Respondent had claimed two properties instead of one. There was no other matter before the court. The learned division bench has correctly stated the applicable principle of law but C.A.1137 of 2008.doc -: 13 :- thereafter has committed an error which is manifest on the face of the record. In these circumstances this finding can also not be upheld. 21. At this point of time it is necessary to deal with one additional point which has been raised before us on behalf of the Respondent. We noticed that the Respondent’s counsel it difficult to justify the judgment of the learned division bench on the merits. Indeed, insofar as the judgment of the learned single bench of the High Court is concerned, he did not advance any proposition whatsoever to impugn its validity. He, however, adopted another stance, namely, to call in question the title of the Appellant. The main thrust of his submission was that the Appellant was only entitled to an area of 80 kanals and not 96 kanals, one marla 12 sq. feet. This contention was based by him on a map which is on the record as well as two additional documents filed by him. While we are going to examine his submission in some depth in what follows it is however necessary to clarify one point right at the inception. 22. The only question before the Settlement Authorities related to the title of the Respondent to the plot bearing No.85/A(ii) ad-measuring 1½ kanals. He claimed that he was entitled both to this plot (originally owned by Mr. Jodha Mal which is located on Khasra No.1047) as well as the smaller plot bearing No.85/A(i) originally owned by Mr. Sobti admeasuring about 12 kanals which is located on Khasra No.1048. In case this point is decided against him the matter comes to an end insofar as he is concerned. He has no locus standi to challenge the title or entitlement of Mr. D.B. Avari. Since we have already come to the conclusion that he has manifestly failed to establish his title in relation thereto his interest in the matter comes to a definitive end. He cannot be heard to challenge the title of Mr. D.B. Avari, which stems from an independent order passed by the Settlement Authorities in his favour, and which has never been challenged by anyone upto now despite the lapse of half a century. C.A.1137 of 2008.doc -: 14 :- Having said that, since the matter is before us, we turn to examine the submissions which have been made on his behalf on the merits. 23. We may note, at the inception, that the heart of the problem in cases such as this stems from the fact that no title deeds are available. This is not uncommon in cases of evacuee property. The owners had fled, presumably carrying with them their documents of title or else they were misplaced. We have to therefore proceed on the basis of whatever material there is available on the record. The map which has been referred to above shows the area as being 9.92 acres (approximately equal to 80 kanals). It, however, also mentions the Khasra No. as being 1047 which is shown to be 96 kanals, 1 marla and 12 sq. feet. Thus the map gives two figures, 9.92 acres and 96 kanals, 1 marla and 12. Sq. feet. The Respondent’s counsel’s contention however is that there are 600 sq. yards in a 1 kanal and if we convert 9.92 acres the result is 80 kanals and hence the Appellant is only entitled to this amount and not 96.1.12 sq. feet. There is more than one error in this contention. The first question is how many sqare yards are there in one kanal. The answer is that it depends on the location of the land. In agricultural areas there are not 600 but 605 sq. yards in one kanal but in Lahore a different practice is followed and there are 500 sq. yards in 1 kanal. There was no dispute on the point, in the entire proceedings before the Settlement Authorities, that apart from the 1 ½ kanals of Khasra No.1047, the rest of the area was the entitlement of Mr. Avari and if the 1 ½ kanals are added the total area of Khasra 1047 comes to 96 kanals, 1 marla, 12 sq. feet and not 80 kanals. If we convert 9.92 acres into sq. yards we get the figure of 48,012 sq. yards and if we divide this by 500 we get 96.0256 kanals or 96 kanals, 1 marla 12 sq. feet which is precisely the basis on which the Settlement Authorities have proceeded in the case, without any objection from the Respondent or anyone else upto now. Thus the entire argument is based on a misconception and, as we will observe in a later part of this judgement, the Settlement Patwari’s report, on which the Respondent had placed C.A.1137 of 2008.doc -: 15 :- prime reliance before the Additional Settlement Commissioner and which he has relied on before us as an additional document comes to exactly the same conclusion. It is only if we proceed on the basis of 1 kanal equals 605 sq. yards (which is inapplicable) that we get a figure of not 80 kanals, but a little over 79 kanals. The argument therefore has to be rejected. 24. Two other documents have been filed by the Respondent and we will now consider them. The first is a copy of the Lahore Municipal Corporation Provisional Assessment List which reveals that Nedous Hotel has been given the number SE 19 R-87 for purposes of identification (i.e. in relation to imposition of municipal tax) which has been assessed at Rs.34,193/-. It describes the area of the site as being 80 kanals. The second is a copy of the Settlement patwari’s report on which principal reliance was placed by the Respondent before the Settlement Department and was once again relied upon before us. 25. As is obvious from the above the Provisional Assessment List on which reliance has been placed relates to tax assessment. For this purpose the Municipality maintains its records of property. In fact, there are a number of additional documents also which are relevant in this context. By way of illustration we may refer to the Lahore Municipal Corporation assessment for the year 1946 in relation to the property bearing SE-19-R-85 A(i). This is the property owned by Mr. K.S. Sobti as stated in the document. This is the property on which the petrol pump is located which measures approximately 12 marlas. The annual value for purpose of tax payment has been assessed at Rs.108. This is the property which covers Khasra No.1048. Similarly, we also have the Lahore Municipal Corporation assessment for the same year in relation to the adjoining property, namely SE-19-R-85 A(ii) on Khasra No.1047. This is the property which admeasures approximately 1 ½ kanals. The name of the owner is disclosed in the assessment form as being R.B.L. Sarain Das for the owner Jodha Mall Kuthiala. This property has been assessed at Rs.720 C.A.1137 of 2008.doc -: 16 :- for tax purposes. This is of course the property which had been illegally allocated to the Respondent and which allotment was subsequently cancelled by the Settlement Department. The occupier of this property, it is interesting to note, is shown as Mr. Sobti. We also have the Lahore Municipal Corporation Preliminary Assessment List for the year 1946, which shows the owner to be Mr. Jodha Mall with as many as five different names given by way of occupiers presumably from time to time. The names of the occupiers are reproduced below: 1. M/S Azam & Sons 2 Halls 2 Small rooms 1 gallery 1 bath. 2. J.C. Shamdia Locked 3. Post office 3 R + IV Ib1 4. Mr. Rafiullah 4R 1K IV 1F (Haroons) 5. Ch. Murtaza Sahib 5R 1K 1B 1F 26. It is interesting to note from the above that at one time even the Post Office was there. The Final Assessment List for the year shows the following names as occupiers: 1. Remington & Co. 2. J.C. Bendhier 3. Post Office 27. Thus although Mr. Jodha Mal remained the owner throughout the occupiers of some of the land kept changing from time to time. Taking all these documents together we can now get a reasonably good idea as to how the confusion may have arisen. The primary interest of the Lahore Municipal Corporation was to carry out an assessment for purposes of levying municipal tax. It was never to determine the question of title, which it was not entitled to do. In the absence of the title deeds for this purpose we have to go to the Revenue records. As is obvious from the above, Mr. Jodha Mal used to allow various individuals/entities to occupy part of the Nedous Hotel lands which were not for the time being required by the Hotel. C.A.1137 of 2008.doc -: 17 :- 28. What emerges from a perusal of the documents is that the number given for purposes of identification of the property (as stated therein) is that number which has been given by the Lahore Municipal Corporation and this number has been given for purposes of tax assessment. As we have already commented, the title deeds however are missing since it was evacuee property. The question therefore arises what exactly was the title of the property owner and what area did it extend to. It is understandable that when a hotel is being assessed for tax purposes the Municipality would simply proceed on the number given by it and also focus essentially on the hotel building which is really the important building for purposes of tax assessment. Now it seems that Mr. Jodha Mall was in the habit of renting out parts of his property to various people or entities or at least to allow them to occupy it temporarily. The area owned by him which was on Khasra No.1047 was 96 kanals, one marla and 12 sq. feet. Out of this area he had, for example, given Mr. Sobti, 1 ½ kanals to be used for purposes of a service station. Similarly he had apparently allowed other persons also to utilize parts of the property. Thus it is possible that these parts of the land could easily and conveniently have been disregarded by the Municipality for purposes of tax assessment. The Municipal Tax record is not really the critically important document in order to establish title. For that we have to look to the Revenue records which fortunately are available with us. There is on the record available a copy of the Revenue records for the pre-partition period. The record relating to the year 1946 is decisive in the matter. This shows an entry in urdu for what is described as (ﺎﮐوﺪـــﻧ) Hotel (i.e. Nedous Hotel) and the area shown is not 80 kanals but 96 kanals, one marla and 12 sq. feet. Since this goes back to the pre-1947 period, when there was no question of any evacuee property, this was the single strongest piece of evidence in relation to the title and ownership. It is important to note that this indicates not only the ownership of Mr. Jodha Mall but also that this entire area had been assigned and used for purposes of the hotel and hotel alone. C.A.1137 of 2008.doc -: 18 :- Thus it can logically be inferred that the area of the hotel was 96 kanals, one marlas and 12 sq. ft. which corroborates our earlier conclusion. This is the reason why the official map gives the area as 9.92 acres and also specifies 96 kanals, 1 marla, 12 sq. feet which exactly correspond to each other on the basis that one kanal equals 500 sq. yards. 29. The above record is further supported by the documentary evidence which is on the record. It needs to be borne in mind that since Nedous hotel was a well known hotel occupying a large area of land the Settlement Department exercised great care for and in relation to the auction. The auction notice states not merely that the auction would be conducted by the Additional Settlement Commissioner, Lahore, but the Settlement Commissioner himself would preside over the proceedings. Pursuant to the auction having taken place in which Mr. Avari was the highest bidder, (and it is important to note that no allegations have been made for and in relation to the manner in which the auction was conducted) initially a Provisional Transfer Order was issued in his favour on 29.1.1962. This Provisional Transfer Order contains the identical clause (vi) which is to be found in the title deed of the Respondent and states that if it is found that any fraud, misrepresentation or concealment has taken place the Government would be entitled to resume the property. However, no such fraud was either alleged by anyone or found by the Settlement Department to have taken place. Thus what is important to note, is that when the final transfer order was issued namely, the Permanent Transfer Certificate, which shows specifically the area of the property as being 96 kanals, one marla and 12 sq. feet on 6.10.1964, clause (vi), which had already served its purpose, was omitted in the normal course by the Government. This was a final title deed and accordingly conferred a permanent title on him in the normal course of events. It obviously could not grant a qualified or conditional title. That would be against the clear policy of the law relating to immovable property. C.A.1137 of 2008.doc -: 19 :- 30. Not merely do the above facts speak for themselves, but there is in addition an extremely important circumstance which is further corroborative of the view expressed in the above. When the matter was re-opened the Additional Settlement Commissioner re-examined all the facts pertaining not merely to the title of the Respondent but also of Mr. Avari from the very inception and passed a very lengthy and detailed order which sets out at length the arguments advanced on behalf of the Respondents for purposes of examination thereof. He recorded the fact that the property auctioned in favour of Mr. Avari spread over Khasra No.1047 which was transferred to him on payment of the sum of Rs.1,21,00,000 and the title was duly confirmed by the issuance of the Permanent Transfer Certificate. He described the boundaries of the plot which are consistent with the fact that it extends to the whole of Khasra No.1047. It had already been noted by the Settlement Department by means of Office Memorandum dated 13.6.1962 that Mr. D.B. Avari had been handed over possession of the entire area sold to him except for the small segment which was in the possession of the Respondent. Mr. Avari’s contention as advanced by his counsel, was that he had admittedly not been handed over possession of this small portion measuring 1½ kanals which was admittedly located on Khasra No.1047 which belonged to Mr. Jodha Mall. Accordingly his contention was that, being an integral part of the big mansion, the Respondent had no legal right or title thereto. 31. However, since the Respondent was adamant in insisting that he was entitled to the 1 ½ kanal plot the Additional Settlement Commissioner had to decide the issue whether or not a multiple transfer of the same property had taken place i.e. to Mr. Avari, as being the successful auction purchaser of Nedous Hotel spread over Khasra No.1047 on the one hand, and the Respondent on the other hand, who was in physical possession of 1½ kanals of that very khasra number. He accordingly called for the entire record and re-examined the same. The following passage from his order speaks for itself: “By going into the facts of the case as presented by both the learned C.A.1137 of 2008.doc -: 20 :- counsels and those available on the record of the case I am of the view that there has been a multiple transfer of the same property in favour of Mr. D.B. Avari auction purchaser on the one hand and M/s. Shahnawaz Service Limited transferee under Settlement Scheme No.1 on the other. This point is established from a reference to the plan of the premises known as Park Luxury Hotel wherein the segment at present in occupation of Shahnawaz Service Station Limited is shown included the premises so exhibited on the plan were disposed of to Mr. D.B. Avari through auction since finalized by way of issue of a Permanent Transfer Certificate. Auction of the property has without doubt been as that of a big mansion. The arguments by the learned counsel for Mr. D.B. Avari in this behalf that no part of the property since treated as big mansion was transferrable to third person unless of course as decided by the CS and RC do carry weight.” Thus, it is clear, that the Settlement authorities examined the official plan of the premises on the basis of which the auction was held before concluding the matter in favour of Mr. Avari. 32. The Additional Settlement Commissioner, in view of the importance of the case, did not however, decide the matter merely on the above basis. He decided to set up a team of five dealing persons as is revealed by another extract from the said order which is reproduced below: “As far as the point whether or not the said segment which is now in suit did form part of the premises sold in favour of Mr. D.B. Avari, the plan as referred to above, has also been examined vis a viz the position obtaining at site. This examination as stated earlier, necessitated by a request by Mr. D.B. Avari for delivery of possession of the premises transferred to them was made through the technical assistance of the Land Acquisition and Control Officer, a Naib Tehsildar, a Revenue Patwari, and a Revenue Qaungo s\aided further by the Settlement Patwari. As per his report dated 27.5.1963 actual measurement of the total area of Khasra No. 1047 in relation to the plan thereof which plan in turn was the subject matter of auction, was carried out at site and as a result of which an area of 1 Kanal and 2 marlas of Khasra No. 1047 was found in occupation of M/S Shahnawaz Service station Ltd.” [Emphasis added] C.A.1137 of 2008.doc -: 21 :- 33. In our opinion these findings are conclusive in establishing what had actually happened. However, there is additional material available as well which further strengthens our conclusion. 34. When the case went up in appeal before the Settlement Commissioner the above findings were upheld. What is interesting to note is that the Respondent counsel’s contention was that Mr. Avari was entitled to 96 kanals, 1 marla and 12 sq. feet and that he already had possession of the same as a perusal of the following passage of the order of Settlement Commissioner reveals: “The counsel for the petitioner (i.e. the present Respondent) further asserted that a total area of 96 kanals, one marla and 12 sq. feet were promised to Respondent by sale and that according to the documents produced before the Additional Settlement Commissioner, it was proved beyond doubt that Respondent enjoyed full possession of 96 kanals, one marlas and 12 sq. feet.” This then was the Respondent’s case. He cannot now be allowed to radically alter it. 35. After considering the arguments advanced on behalf of both parties the Settlement Commissioner decided that the critical point was the entitlement of the Respondent – whether he had obtained one property or two, and since it had been established that there was no doubt about the fact that his legal entitlement only extended to one property hence the following finding was given: “It has been rightly held by the lower court that the Appellant is the transferee of two properties and that the portion of property No.SE-19-R-87 purchased by the Respondent in open auction had also been transferred to the Appellant by the Deputy Settlement Commissioner in an illegal manner. The appeal has no force and is dismissed herewith.” 36. Thus it can be seen that the Respondent signally failed in order to establish his entitlement and the case was decided against him accordingly. This was in fact the major question before us. Thereafter the Respondent sought to challenge the concurrent findings of fact before a learned single judge of the Lahore High Court. C.A.1137 of 2008.doc -: 22 :- This has already been discussed by us at some length, and as noted above, the Respondent failed on an additional point as well that under the law in no circumstances whatsoever was he entitled to a transfer since he had claimed the transfer as a “shop” whereas in fact on the basis of his own admission it was clear it was an open plot of land. The finding of the Settlement Department on the facts was reiterated by the learned single judge. 37. We now turn to the final document in the case which we have not examined so far. As stated earlier, the Respondent has filed before us a copy of the Settlement Patwari’s report which he had relied on earlier unsuccessfully before the Additional Settlement Commissioner. This is an extremely document which conclusively demolishes his case. In the earlier part of this report he suggests that Mr. Avari has already been given possession of 96 kanals, 17 marls and then proceeds to give his assessment of the matter. The relevant passage (in urdu) is reproduced below alongwith an English translation: (X-7) It has been found from the new record that the area of Khasra No 1047 is 96-1-12 and as per the above measurement it is 96-17 (96 Kanals 17 marlas) i.e. 15-213 is in excess. Workshop’s khasra may be different because this workshop is connected with Khasra 1048 since earlier. Area covered by the Hotel is left at 96-1-12. Therefore, it is submitted that from the above measurement it is proved that the total area of the Hotel is left at 96-1-12 which is in possession of the Hotel and it is this area which was auctioned by the Government. (Dated 5-6-1962). Shaukat Ali Patwari Lahore. C.A.1137 of 2008.doc -: 23 :- 38. Bearing in mind all the above facts and circumstances certain points are clear beyond any doubt: Firstly, insofar as the legal entitlement of the Respondent is concerned, this is primarily a question of law and there can be little doubt about the fact that he had illegally obtained two plots of land instead of one and hence the Settlement Department was entitled to cancel one of the two plots while the leaving the other in his possession and ownership. In fact, since there was only one order of the Deputy Settlement Commissioner which transferred both to the Respondent at one and the same time it was possible for the department even to have cancelled both at the same time but, we think, viewing everything in the proper perspective, that the department acted fairly and equitably in leaving title of one plot to him and restricting the cancellation to the other plot. Secondly, the question of Mr. Avari’s entitlement really did not arise per se. The main thrust of the argument of the Respondent was in all prior stages upto the hearing of this appeal, that Mr. Avari already had the full 96 kanals, one marla and 12 sq. feet and hence was not entitled to the additional 1½ kanals which was in his occupation. This question of Mr. Avari’s entitlement being limited to 80 kanals were never raised by him either before the Settlement Department or before the learned single judge and nor is it borne out by a consideration of all the facts and circumstances. 39. We have already commented on the fact that the Respondent has no locus standi to independently challenge the entitlement of Mr. Avari. We have, on our own, examined all the record in order to arrive at the conclusion which has been set out in the above. It may, however, be added that in any case it would be really extraordinary if a title which has been unchallenged and is supported by a Permanent Transfer Certificate issued more than half a century ago should now be allowed to be re-opened for the first time and that too in appeal on the allegations made by a person who has committed fraud. This is really something which we do not think would be proper or appropriate. The policy of the settlement law, has been to not to allow C.A.1137 of 2008.doc -: 24 :- questions of title, involving fatal disputes to be re-opened ever since the 1960s. This is the reason that revisional powers were taken away. In the present case the Settlement Department has also not challenged the title at any stage. In the circumstances the appeal is allowed. JUDGE JUDGE JUDGE Announced in open Court on 16.12.2015 at Islamabad Not Approved For Reporting Waqas Naseer/*

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Ijaz Ahmed Chaudhry Mr. Justice Mushir Alam Mr. Justice Sardar Tariq Masood Civil Appeal No.1149 of 2015 Against judgment dated 28.05.2015 of Lahore High Court, Lahore, passed in Intra Court Appeal No.67 of 2015. National Electric Power Regulatory Authority Appellant(s) VERSUS Faisalabad Electric Supply Company Limited Respondent(s) For the Appellant(s) : Mr. Munawar-us-Salam, ASC Syed Rafaqat H. Shah, AOR For the Respondent(s) : Mir Afzal Malik, ASC Ch. Akhtar Ali, AOR Date of Hearing : 08.12.2015 JUDGMENT Mushir Alam, J-. Through this appeal by leave of the Court, the Appellant-National Electric Power Regulatory Authority (NEPRA) has impugned the Judgment dated 28.05.2015, passed by a learned Division Bench of Lahore High Court, Lahore in ICA No.67 of 2015, also reported as National Electric Power Regulatory Authority v. Faisalabad Electric Supply Co. Ltd (PLD 2015 Lahore 661), whereby Judgment dated 15.12.2014 passed by a learned Single Judge in Writ Petition No.28681 of 2014 was maintained setting aside the order dated 16.6.2014 made on a ‘Motion for Leave to Review’ by three members Authority of NEPRA, as against total strength of five members and the Appeal was dismissed on the ground inter alia that “it is clear from perusal of the Rule 16(6) of the NEPRA (Tariff Standards Procedure) Rules, 1998 that the law mandates for hearing of a Motion for Leave to review to be heard by the “full strength of the Authority”. Civil Appeal No.1149 of 2015 2 2. Brief facts of the case appear to be that the NEPRA, appellant herein, is an Authority, constituted under Section 3 of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, responsible for determining of tariffs and other terms and conditions for the supply of electricity by generation, transmission and distribution companies. It also confers jurisdiction for determination of the process and procedures for reviewing tariff and recommending tariff adjustment. The Authority is comprised of a Chairman to be appointed by the Federal Government and four members, one from each Province, to be appointed by the Federal Government after considering the recommendations of the respective Provincial Governments. Vice Chairman of the Authority is appointed from amongst the members for a period of one year by rotation. Sub Section (6) of Section 3 of the Act provides that no act or proceeding of the Authority shall be invalid by reason only for the existence of a vacancy in, or defect in, the constitution of the Authority. Section 5 ibid provides that meetings of the Authority shall be presided over by the Chairman or, in his absence, the Vice-Chairman. Three members shall constitute a quorum for meetings of the Authority requiring a decision by the Authority. Decision of the Authority is by majority of its members present, and in case of a tie, the person presiding the meeting has a casting vote. Section 6 mandates that all orders, determinations and decisions of the Authority are in writing and shall identify the determination of the Chairman and each member. 3. The Respondent-FESCO, under Rule 3(1) of the NEPRA Tariff Standards and Procedure Rules, 1998, (hereinafter referred to as NEPRA Rules, 1998) filed a Petition for the determination of Consumer Tariff for the Financial Year 2013-14 dated 28.06.2013. The matter was heard and decided by a three members Authority on 6.2.2014. Respondent being not satisfied, filed a “Motion for Leave to Review, as provided under sub rule (6) of Rule 16 of the NEPRA Rules, 1998. Review motion was admitted for hearing Civil Appeal No.1149 of 2015 3 and after hearing the Respondents-FESCO, Order on Review Motion was rendered on 16.6.2014 by the Vice Chairman (Sindh), and two members one from Balochistan and other from Punjab. 4. This order dated 16.6.2014 by the Authority, was challenged by the Respondent-FESCO. Contentious issue was the competence of the Authority to decide “Motion for leave to Review”, on the ground that the order has been passed by three members of the Authority, while Rule 16 (6) of the NEPRA Rules, 1998 requires that the Motion for Leave to Review was to be determined by “full strength of Authority”. A learned Single Judge in Chambers in the High Court quoted Rule 16 ibid which reads as follows:- “16. Decisions, etc., by the Authority. — (1) All orders, determinations and decisions of the Authority shall be taken in writing. (2).. (3)… (4)… (5)… (6) Within ten days of service of a final order, determination or decision of the Authority, a party may file a motion for leave for review by the full strength of the Authority of such final order, determination or decision, as the case be. (7) A motion for leave for review shall specify the grounds on which review is sought by the party. Parties to the proceedings shall be afforded a reasonable opportunity, orally or in writing as deemed fit by the Authority, to respond to a motion for leave for review. (8) The Authority shall act upon a motion for leave for review within ten days of receipts of such motion unless it gives notice to the parties, in writing that a longer period of time will be required and specifies the additional length of time necessary to consider the motion. (9) The Authority may refuse leave for review if it considers that the review would not result in the withdrawal or modification of the final order, determination or decision. (10) The Authority may grant leave for review on such conditions as deemed appropriate by the Authority including, without limitation, the conditions pertaining to any limits on time or additional evidence proposed to be presented in review.” In paras 5 & 6 of the Judgment, dated 15.12.2014, it was held as under:- “5. It is clear from a perusal of the Rule 16(6) that the law mandates for the hearing of a Motion for Leave to Review to be heard by the ‘full strength’ of the Authority. The term ‘full strength’ of the Authority does not present a complicated issue of construction of statute. It simply means that the said proceedings shall be taken and decided by all the members of the Authority sitting together and deciding such review. There is no cavil with the proposition that in the instant Civil Appeal No.1149 of 2015 4 case the law does not even refer to a quorum but without equivocation requires the hearing by the ‘full strength’ of the Authority. It is settled as a basic canon of interpretation that if the intent of the legislature can be clearly gleaned then it must be given effect to without demur. In this case, there can be no two opinions on the requirement of the law and the meaning of the term ‘full strength’. A dictionary meaning given to the term shall suffice. In Oxford Advanced Learner’s Dictionary, 8th Edition, it is described thus: ‘5[usually before noun] complete; with nothing missing’ and strength as: ‘10 [uncountable] the number of people in a group, a team or an organization’. 6. There also seems to be a purpose for laying it as a condition that the Motion for Leave to Review be heard by the full strength of the Authority. And that seems to be that such a review is in the nature of an appeal and, therefore, the hearing should be by a complete strength of members sitting and deciding the review. This will lend due process to the entire procedure.” 5. The writ petition was accepted. The Appellant- NEPRA challenged the judgment of the learned Single Bench through ICA No.67 of 2015 and a learned Division Bench, vide judgment dated 28.05.2015, concurred with the above judgment of Single Bench and in paragraphs 12 TO 14 thereof and it was held as follow:- “12. The term full strength under Rule 16(6) of the Tariff Rules is not the available strength but the statutory strength as provided under Section 3 of the Act i.e., five Members including a Chairman because under the said Rule, the Authority discharges one of its essential functions. Rule 16(6) simply reiterates this principle that the Authority has to act with full strength in matters which fall within the core essential functions of the Authority and where delegation is not permissible. It is important to highlight that it is not only at the time of hearing a motion for leave for review that the Authority must have full strength, but the full strength of the Authority must be there when the tariff is to be determined by the Authority or while performing the other functions issued under Section 12 of the Act. The Authority has other administrative Powers and functions listed under Section 7 of the Act. These administrative functions and its decisions are taken in the meetings of the Authority. Section 5 deals with this administrative character of the Authority and its secretarial provision, regulating the procedures for holding a meeting. These meetings and the decisions taken thereunder have no co-relation with the core and essential quasi-judicial powers and functions of the Authority e.g., the determination of tariff or deciding the motion for leave to review. Hence, the argument that if the quorum is complete the Authority can call a meeting and determine tariff, is hopelessly misconceived as it incorrectly mixes two different functions of the Authority. Section 5 deals with administrative meetings and is a secretarial provision with no nexus with the determination of tariff which is a quasi-judicial function of the Authority. Civil Appeal No.1149 of 2015 5 Learned counsel for the Appellant has relied on Section 3(6) of the Act to argue that decisions of the Authority cannot be declared to be void if only three Members have made the determination of tariff or have decided the motion for leave to review: Section 3 (6) provides: No act or proceeding of the Authority shall be invalid by reason only of the existence of a vacancy in, or defect in, the constitution of the Authority. This is an operational provision which applies once the Authority has been duly constituted in terms of Section 3 and its composition is complete. The reference to the terms “vacancy” and “defect” pertain to absence of the member or a procedural defect or irregularity in the membership. Both these disqualifications assume that the Authority has been fully constituted. Section 3(6) addresses a temporary problem and, therefore, protects the acts or proceedings of the Authority to allow smooth operability of the Authority. There could be a situation where a duly appointed member refused to attend the proceedings of the Authority for tariff determination or some irregularity in the appointment of any member who is part of these proceedings. The purpose of Section 3(6) is to ensure that such hiccups do not derail the Authority or its decisions. In the case of determination of tariff, while full strength is mandatory, there could be a situation where the Member is genuinely not able to attend the meeting or his appointment suffers from any irregularity making it difficult for him to attend, in such a situation, which should be duly recorded in the minutes of the proceedings, the Authority can proceed and determine the tariff or decide the motion for leave for review. This exception is few and far between but in the present case, Section 3(6) has no relevance as the Authority was not properly and lawfully constituted to begin with, as the Chairman and one other Member had not been appointed. Section 3(6) does not empower the Authority to proceed without proper constitution in terms of Section 3 of the Act. Any such interpretation can lead to absurd results, as the Chairman or a few Members, under the garb of Section 3(6) can proceed on their own and continue to determine tariff for the longest time. In such an eventuality, the Federal Government will have no incentive of obligation to appoint Members under the Act or complete the constitution of the Authority. Any such interpretation is also violative of the fundamental rights and the Constitutional vision as discussed above.” 6. It was contended by learned ASC that the Original order was passed by the Authority comprised of two members and a Vice Chairman, and order on Motion for Leave to Review was also heard and decided by same set of members and a Vice Chairman. It was vehemently argued that in terms of Section 5(2) of the Act, 1997 three member quorum is provided for the decision by the Authority which is a statutory requirement of the Act of 1997. It was urged that the Rules providing otherwise are to be read in conformity with the provisions of parent law and not in derogation thereto. It was urged that the learned Division Bench of the High Court has Civil Appeal No.1149 of 2015 6 taken a very strict view of sub rule (6) of Rule 16 of the NEPRA Rules, 1998 providing for the review by the “full strength of the Authority” should have been read in conjunction with Section 3(6) of the Act, 1997 whereby the Act, 1997 expressly provides and save the proceedings of the authority in event of the vacancy in, or defect in, constitution of the authority and in terms of Section 5(2) of the Act, 1997, which provides quorum of three members for decision of NEPRA. It was, therefore, argued with vehemence that Rule 16(6) of the NEPRA, 1998 not governs the Act, but it is vice versa, as power to Review was conferred on Authority under Clause (g) of sub-section (2) of Section 7 of the Act, 1997 through an Amendment in Act of 2011. In support of his contentions, he has placed reliance on Managing Director, SSGC Ltd v. Ghulam Abbas (PLD 2003 SC 724 @ 751); Reference No.1 of 2012 (PLD 2013 SC 279 @ 329 and 330); Muhammad Ashraf Tiwana v. Pakistan (2013 SCMR 1159 @ 1192); and Pakistan v. Aryan Petro Chemical Industries (Pvt) Ltd (2003 SCMR 370 @ 388). 7. It was further urged that decisions of the Authority are merely recommendatory and under Section 31 of the Act, 1997 it is upto the Federal Government to decide as it is or may require the Authority to reconsider its determination, and after such exercise within the contemplation of sub-section (4) of Section 31 of the Act, it is published in the Official Gazette. It was stated at bar that the Federal Government has accepted the determination on 01/11/2014, and further revision in tariff was made on 10.6.2015 to which the Respondent-FESCO has taken no exception. 8. Learned ASC for the Respondent-FESCO heavily relied upon sub-rule (6) of Rule 16 of the NEPRA Rules, 1998, reproduced hereinabove. According to him, for the purpose of Leave to Motion in Review per sub Rule (6) has to be determined by the full strength that is to say all five members. According to him, said sub-rule (6) ibid must Civil Appeal No.1149 of 2015 7 receive literal interpretation otherwise it would amount to violating the spirit of the law. In support of his contention, he relies on Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 Supreme Court 879). 9. We have heard the arguments of learned counsel for the parties and perused the record. Leave to Appeal was granted on 06.11.2015 in the following terms:- “Inter alia contends that under Section 5(2) of the NEPRA Act any decision in respect of the functions under the NEPRA Act can be taken by the petitioner in a duly convened meeting wherein minimum of three members of the petitioner are present; that Section 5(4) of the Act specifically mandates that the decision shall be taken by the majority of its present members; that the Act do not create a distinction or imposes a restriction for the purposes of tariff determination to be undertaken by the full statutory strength of the petitioner and that the above aspects of the matter have not been taken into consideration by the learned High Court. 2. Having heard learned counsel for the petitioner at some length, leave is granted in this petition inter alia to consider the issues raised. Since a short point is involved, office is directed to fix the main appeal on 26.11.2015.” 10. Entire controversy revolves round the interpretation of sub-rule (6) of Rule 16 ibid; which runs as follows:- “(6) Within ten days of service of a final order, determination or decision of the Authority, a party may file a motion for leave for review by the full strength of the Authority of such final order, determination or decision, as the case be.” In order to examine the purport of the above rule, it would be advantageous to keep in sight the relevant provisions of the Act, 1997 that is to say Sections 3 to 6 of the Act, 1997 which read as follows; “3. Establishment of the Authority. (1) As soon as may be, but not later than thirty days after the commencement of this Act, the Federal Government shall, by notification in the official Gazette, establish a National Electric Power Regulatory Authority consisting of a Chairman to be appointed by the Federal Government and four members, one from each Province, to be appointed by the Federal Government after considering the recommendations of the respective Provincial Governments. (2) There shall be a Vice-Chairman of the Authority, appointed from amongst the members for a period of one year, by rotation, in the following order, namely: (i) the member representing the Province of Baluchistan; (ii) the member representing the Province of North-West Frontier; (iii) the member representing the Province of the Punjab; and (iv) the member representing the Province of Sind. Civil Appeal No.1149 of 2015 8 (3) [The Chairman shall be an eminent professional of known integrity and competence with at least twenty years of related experience in law, business, engineering, finance, accounting, economics, or the power industry]. (4) Every member shall be a professional of known integrity and competence with at least fifteen years of related experience in law, business, engineering, finance, accounting, economics or the [power] business. (5) The Chairman and a member shall, unless he resigns or is removed from office earlier as hereinafter provided, hold office for a term of four years and shall be eligible for reappointment for similar term: Provided that a Chairman or a member shall not be appointed under sub-section (1) if he has attained the age of sixty- five years. (6) No act or proceeding of the Authority shall be invalid by reason only of the existence of a vacancy in, or defect in, the constitution of the Authority. (7) The principal office of the Authority shall be in Islamabad and it may set up offices at such place or places as it may deem appropriate. 4. Resignation and removal of Chairman, etc. (1) The Chairman, or a member may, by writing under his hand, resign from his office. (2) The Chairman or a member may be removed by the Federal Government from his office if, on an inquiry by the Federal Public Service Commission, he is found incapable of performing the functions of his office by reason of mental or physical incapacity or has been found guilty of misconduct. 5. Meetings of the Authority, etc. (1) The meetings of the Authority shall be presided over by the Chairman or, in his absence, the Vice-Chairman. (2) Three members shall constitute a quorum for meetings of the Authority requiring a decision by the Authority. (3) The members shall have reasonable notice of the time and place of the meeting and the matters on which a decision by the Authority shall be taken in such meeting. (4) Decision of the Authority shall be taken by the majority of its members present, and in case of a tie, the person presiding the meeting shall have a casting vote. 6. Decisions of the Authority. All orders, determinations and decisions of the Authority shall be taken in writing and shall identify the determination of the Chairman and each member.” 11. NEPRA Rules, 1998 are framed by the Authority under Section 46 of the Act, 1997 with the approval of the Federal Government. Rules and or Regulations are the progeny or off spring of a Statute and are to be strictly in conformity with the provisions of the Statute where under same are framed. It is settled proposition of law that the rules framed under a Statute are to remain within the precinct of the Statute itself and cannot transgress the limits and parameters of the parent Statute itself. All efforts are to be made to interpret the rules so as to bring it in conformity and without injuring the intent and spirit of the Statute, where it is not possible then the rules in as much as it is injuring the Civil Appeal No.1149 of 2015 9 very intent and spirit which must yield to the Statute. This view finds support from a case reported as Ziauddin v. Punjab Local Government (1985 SCMR 365 @ 368), wherein it was held as under:- “Rules framed under the statute could not go beyond and over reach the statute itself. To make implementation of statutory provision consistent harmonious directory effect must be given to requirement of Rule”. 12. In another case reported as Pakistan v. Aryan Petro Chemical Industries (Pvt) Ltd (2003 SCMR 370) in paragraph 11 of the judgment, it was held that “This is a settled principle that a statutory rule cannot enlarge the scope of the section under which it is framed and if a rule goes beyond what the section completes, the rule must yield to the statute. The authority of executive to make rules and regulations in order to effectuate the intention and policy of the Legislature, must be exercised within the limits of mandate given to the rule making authority and the rules framed under an enactment must be consistent with the provisions of said enactment. The rules framed under a statute if are inconsistent with the provisions of the statue and defeat the intention of Legislature expressed in the main statute, same shall be invalid”. 13. In somewhat similar situation, in a case reported as Isa Ammal v. Rama Kudumban (AIR 1953 Madras 129), where the Petitioner applied for the issuance of a writ of certiorari to quash the proceedings and the decision of the Estates Abolition Tribunal at Madurai dated 22nd May 1950 in Revenue Appeal No.54 of 1950, on the ground inter alia that only two members of the Tribunal heard and disposed of the appeal filed by the petitioner under Section 9(4) of Madras Act XXVI of 1948 when the Tribunal as constituted by the Government was consisted of three members. The Settlement Officer Ramnad, acting under Section 9 of Madras Act XXVI of 1948 held an enquiry and declared the village not to be an inam estate as defined in Section 2 (7) of the said Act. Against his decision there was an appeal to the Estates Abolition Tribunal at Madurai by a ryot of the village. Two members of Civil Appeal No.1149 of 2015 10 the Tribunal set, heard and reversed the decision of the Settlement Officer and declared the village to be an inam estate. The Tribunal under Section 2 (14) of Madras Act XXVI of 1943 is constituted and in terms of Section 8 (2) each Tribunal shall consist of three members; one of them (who shall be its chairman) shall be a District Judge or an officer eligible to be appointed as a District Judge, another shall be a Subordinate Judge or an officer eligible to be appointed as a Subordinate Judge, and the third shall be a Revenue Divisional Officer or an officer eligible to be appointed as a Revenue Divisional Officer. In terms of Section 9 (4) (a) any person deeming himself aggrieved by a decision of the settlement Officer under Sub-section (3) may appeal to the Tribunal, whereupon the Tribunal hears the Appeal and gives decision [Section 9 (4) (b)]. Besides the jurisdiction to decide appeals from the decision of the Settlement Officer under Section 9, the Tribunal is also entrusted with several important duties and for carrying them out, large powers have been conferred on the Tribunals. Section 67 empowers the Government to make rules to carry out the purposes of the Act, and in particular rule 1 as regards the Tribunal provided, inter alia that “Not less than two members shall be necessary to constitute a sitting of a Tribunal”. In rule 2 it was provided that any matter before it, shall be decided according to the opinion of the majority of the members. If any matter has been heard by only two of the members and the members are divided in opinion as to the decision to be given, the matter shall be referred to the third member and decided according to the opinion which along with his constitutes the opinion of the majority, in rule 3 it was provided that when the Chairman of a Tribunal is ill or absent for any other reason the Second Judicial Member of the Tribunal shall act as the Chairman." Argument raised before the Court was that said rules, in so far as they purport to authorise two members of a Tribunal to sit and dispose of matters arising for the decision of the Tribunal are invalid as being ultra vires to the provisions of the Act. The Madras High Court on examining the provision of the Act and the Rules as Civil Appeal No.1149 of 2015 11 quoted above held that “on a plain reading of the language of the material sections this contention must prevail. Under Section 9 (4) (b) it is the "Tribunal" which must hear and give its decision in an appeal preferred to it under Section 9 (4) (a). The Tribunal, according to the definition, means a Tribunal constituted under Section 8 and under Section 8 (2) it is expressly provided that each Tribunal shall consist of three members. When the substantive provision in the Act clearly lays down that the Tribunal shall consist of three members it is not open for the Government to provide by a rule that a Tribunal may consist of less than three members”. 14. It is to be noted that composition of the “Authority”, the Quorum, required to attend and make decisions both administrative and or quasi judicial, as is required to be taken by any regulatory Authority, within the contemplation of Section 3 of the Act of 1997, is with great deal of flexibility from the strict rules of rigidity. Important nature of functions and duties of the Authority, that is required to take administrative and quasi judicial functions and duties, with promptitude desired informality and flexibility in its composition so that the working of the Authority may not be stifled and or strangulated in the rigors of strict norms of its composition and effect its performance of functions and duties. Section 5(1) thereof provides that meeting of the authority shall be presided over by the chairman or, in absence, the Vice chairman. And Section 5(2) ibid provides in clear terms that three members shall constitute a quorum for meetings of the Authority requiring decisions by the Authority. In order to dispel any doubt as to the effect and or merit of any act and or proceedings by the Authority, legislature has taken due care of eventuality in case where there happens to be any vacancy in, or defect in, the constitution of the Authority. Subsection (6) of Section 3 provides legal cover and any such act or proceedings could not be invalidated on such count. Object of sub-section (6) of section 3 ibid, is to keep the authority functional in all respects in performance of its all functions irrespective of any Civil Appeal No.1149 of 2015 12 vacancy but subject to maintaining minimum strength of quorum as three. There is no dispute that at the time when the original decision was rendered on 6.2.2014 and even at the time when the decision dated 16.6.2014 on Motion for Leave to Review was handed down, the Authority was comprised of two Members and a vice Chairman, that met the minimum requirement of three members quorum set down in terms of Section 5 (2) of the Act, 2007. 15. The Authority that has been conferred power under clause (g) of sub-section (2) of Section 7 to “review its order, decision, or determination”. Power to Review was conferred on the authority as noted above under the Regulation of Generation, Transmission and Distribution of Electric Power (Amendment) Act, 2011 and Rules were framed on 23 December 1998. Therefore, rules providing any other, strength of members for exercising its authority may it be executive, administrative and or quasi judicial, different than what is set down in the parent Statute itself, unless of course, such is permissible and provided for under the Act itself, must yield to the present Statute. 16. Every provision of the Act, 1997 is to be read harmoniously and rules are to be read keeping in sight the parameters of the parent statute. Therefore, rule 16(6) of the Rules 1998 requires order, determination on motion for leave for review is to be made by “full strength”, within the contemplation of Rule 16(6) ibid means strength as set down in the Statute itself, that is minimum of three members within the contemplation of section 5 (2) of the Act, 1997. Act of 2007 does not admit of any classification of Authority viz. statutory strength and or full strength, and none should be created when the parent Statute does not permit so. One must not lose sight of the fact that rules are subservient to the Statute. Rules must be interpreted in a manner that it remains within the confine of the Statute itself and any interpretation that may outstretch the rules to take it out of pale of Statute should be avoided. Civil Appeal No.1149 of 2015 13 17. In view of the above discussion, we have no hesitation in holding that decision by as many members as were present not below quorum as required under Section 5(2) of the Act, 1997 is the “the full strength” of the Authority within the preview of the Rule 16(6) of the Rules, 1998. The decision of the Authority dated 6.2.2014 was therefore, well within the competence of the Authority. Accordingly, impugned Judgment dated 28.5.2015 passed by a learned Division Bench of the High Court in ICA No.67/2015 maintaining the judgment of the learned Single Judge dated 15.12.2014 is set aside. Resultantly, the appeal is allowed. Judge Judge Judge ISLAMABAD, THE 8th of December, 2015 ZR/*

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.4- SUPREME COURT OF p (Appellate Jurisdiction) Mr. Justice Gulzar Ahmed, CJ Mr. Justice Jjaz iii Ahsan •__I -a t -- [Against the judgment dated 22.09.2020, passed by the Sindh Service Tribunal, Karachi in Appeal No.1009 of 20191 Abdul Sattar Jatoj son of Saaduiiah Jatoi, Muslim, Adult, Director (Administration, Accounts & Development) (BPS -2 0), resident of House No.29..A, Jatol Haven, Samanabad, Near Marzjj ?own, Qasimabad Hyderabad. Versus . . . Appellant(s) Chief Minister Sindh through Principal Secretary, Chief Minister Secretariat, K arachi and others.. . Respondent(s) For the Appellant(s) Mr. M.M. Aqil Awan, Sr.ASC For Respondents No. 1-4 Syed M. Saulat Rizvi, (Govt of Sindh) Add]. Advocate General, Sindh (via video link from Karachi) Respondent No.5 In person Date of Hearing 90 fli r)nni JUDGMENT This civil appeal is by leave of the :J Court vide order dated 03.12.2020. 2. Facts of the matter are that Respondent No.5-Au Abbas (the respondent) and appellant Abdul Sattar Jatoi were appointed on 16.03.1992 as Planning Officers (BPS-I?) in the Health Department,Government of Sindh on the recommendation of the Sindh Public Service Commission, which contained the merit list, where the name of Respondent No.5 was mentioned at Serial No.5, while the name of the appellant was mentioned at .1 - Cilil Appeal No 1167 of 2020 - 2 Serial No.9. Both the respondent and the appellant were ptomoted :1 as Deputy District Officer (P&D) (BPS-] 8) vide Notification dated J 1 1.10.2004, wherein the name of the respondent was mentioned t at Serial No-3, while that of the appellant at Serial No-5. Seven Deputy District Officers (P&D) (BPS-18) were promoted as District I Officer (Administration, Accounts & Development) ( BPS-19) and 1 one as Additional Director Development by the Provincial Selection Board No.11 held on 27.01.2010, wherein name of respondent is mentioned at Serial No.2, while the appellant at Serial No.5, 3. It seems that the post of District Officer (Administration, Accounts & Development) (BPS-19) was abolished Vide Notification dated 07.11.2012, the appellant, an officer in BPS- 19 in the Health Department, was declared surplus H with immediate effect and under Rule 9-A of the Sindh Civil Servants (Appointment, Promotion & Transfer) Rules, 1974 (the Rule of 1974), his service was placed at the disposal of the a surplus-pool of Services, General Administration and I Coordination Department (SGA&CD), Government of Sindh. Through a further Notification dated 1 0.01.2013, the appellant was absorbed / inducted in the Provincial Secretariat Set-vice cadre against an equivalent post of BPS- 19 with immediate effect. 1r Through further Notification dated 02 .07.2013, the absorption of the appellant in the Provincial Secretariat Service was withdrawn. The appellant made an application dated 25.07.2013 addressed to the Chief Secretary, Government of Sindh requesting that he may :J be posted/absorbed back against non-cadre position at Liaquat 1 University Hospital Hyderabad/Jamshoro by re-designating post I Civil Appeal No. 1167 of 2020 - of BPS- 19, as Director (Administration, Accounts and Development). The summary dated 12.12.2013 for the approval of the Chief Minister, Sindh was initiated recommending re- designation of one post on non-clinical side as Director (Administration, Accounts & Development) (BPS- 19) for absorption of the appellant. Vide Notification dated 09.01.2014, the appellant was posted as a Project Director, Project Management & Implementation Unit (PMIU), Education & Literacy Department. Through the order of the Health Department, Government of Sindh dated 09.11.2016, one post of Additional Medical Superintendent (BPS-19), Liaquat University Hospital, Hyderabad was sanctioned and re-designated as Director (Administration, Accounts & Development) (BPS-19) on non-clinical side for absorption of the appellant. Through Notification dated 25.11.2016, the appellant was absorbed as Director (Administration, Accounts & Development) (BPS-19), Liaquat University Hospital, Hyderabad. Through further Notification dated 06.03.201.8, rules for appointment were amended and a person specific post of Director (Administration, Accounts and Development) in BPS-20 was created for the appellant in the Health Department, Government of Sindh. Through further Notification dated 01.06.2018, the appellant was promoted to the I post of Director (Administration, Accounts & Development) in BPS-20 on regular basis with immediate effect. The respondent was aggrieved of this last mentioned Notification and thus, submitted a departmental appeal. The respondent did not receive response to the departmental appeal, therefore, he filed Service Civil Appeal No. 1 167 of 2020 Appeal No.993 of 2018 in the Sindh Service Tribunal, Karachi (the Tribunal). He made the appellant as Respondent No.4 in the said service appeal and prayed that the promotion of the appellant as Director (Administration, Accounts & Development) in BPS-20 be cancelled and withdrawn, and the said post be filled up amongst the most senior officers on the basis of seniority-cum-fitness and in accordance with law. This service appeal of the respondent was dismissed as premature vide order dated 30.08.20 19 and he was allowed to file departmental appeal and then to file service appeal within 90 days of filing of the departmental appeal. The respondent seems to have filed departmental review appeal/petition and getting no response on the same, again filed a service appeal in the Sindh Service Tribunal. The appellant was impleaded as Respondent No.5 in this service appeal. After hearing the learned counsel for the parties, the Tribunal through its impugned judgment dated 22.09.2020, disposed of the appeal by noting, inter a/ia, as follows:- "17. It was told to us that currently the respondent No.05 has been relieved of the charge of the post of BS-20 Liaquat University Hospital, Hydcrabad/Jamshoro and he has reported to Health Department. He is therefore to stay there and be treated and posted in BS-19 like his batch-mates obeying the judgment of the Hon'ble Supreme Court in letter and spirit. His promotion to BS-20 is set aside." As noted above, the Tribunal has set aside the promotion of the appellant as an Officer of BPS-20. 4. Learned counsel for the appellant has contended that the very service appeal filed by the respondent before the Tribunal Civil Appcal No.] 367 012020 was not maintainable and in this regard made reference to Section 4(b) of the Sindh Service Tribunals Act, 1973. He further contended that the officers of the Health Department were H Considered for promotion by the Provincial Selection Board No.11 H held on 27.1.2010 and the appellant so also the respondent and other five officials were granted promotion from the post of Deputy District Officer (Planning & Development) (BPS-18) to the post of District Officer (Administration, Accounts and Development) (BPS- 19) and one as Additional Director Development. He further contended that through the Sindh (Repeal of the Sindh Local Government Ordinance, 2001 and Revival of the Sindh Local Government Ordinance, 1979) Act, 2011 (the Act of 2011), the Sindh Local Government Ordinance, 2001 was repealed and the i Sindh Local Government Ordinance, 1979 was revived, and further on Promulgation of the Act of 201 1, the posts held by the appellant and the respondent were abolished and while the appellant was placed in the surplus-pool the respondent continued to work in the Health Department in BPS-19. He contended that under Rule 9-A of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, the SGA&CD being parent Department was competent to post the appellant in any other department and could also be re-designated. He further contended that having been posted as Additional Medical :1 Superintendent (BPS-1 .9) in Liaquat University Hospital, Hyderabad and re-designated as Director (Administration Accounts and Development) (BPS- 19) on non-clinical side, and the said Hospital being attached department of the Health Civil Appeal NO. 1167 of 2020 - 6 Department,in terms of the recruitment rules, the post of Director (Administration, Accounts and Development) (BPS-20) was Created and the appellant was promoted to the said post. He contended that there was no illegality in the promotion of the appellant and in this respect relied upon the Cases of Shaft Muhammad Mughaj V. SPrrc'tnn, '-.4-.-7-u_y - - - (2001 SCMR 1446), others (1995 SCMR 881), Miss Zubaicia Khatoon v: Mrs. Tehmjna Safid Sheikh and others (2011 PLC (C.S.) 596), Messrs Associated ccjrnt Companies Ltd v. Pakjctnn thrn,,1 a7-- !L! YJ!t L2Lore Range Lahore and 7 others (PLD 1978 SC 151), Dr. Hag v. The Province of Pun lab and others (1980 SCMR 972), A-b-d ul Sattar v. Pprlc'rntinn (2013 SCMR 911), (1995 SCMR 1505), The Chairman, P.LA.0 and others v (PLD 1990 SC 951), M.A. Ghafoor, Senior Mechanical OfJicer, H Lahore v. Islamic Republic QLE2±i5t4zithrough Secretary Establishment Division, Government QstanJslamabadd24 others (2002 PLC (C.S.) 164]) and Government of Balochistan throuq Secrptnn, Cnn ,:-,--- - 1Y4 seer (2009 PLC (C.S.) 513). 5. The learned Additional Advocate General, Sindh appearing for the official respondents did not Oppose the Contentions of the learned counsel for the appellant .1 H Civil Appeal No. J 167 of 2020 -7- 6. The respondent appeared in person and argued his ! case himself. He has Supported the impugned judgment and contended that the appellant was junior to him since the initial appointment and at no point of time the appellant was ever made senior to him. He contended that a person specific post of Director I (Administration, Accounts and Development) in BPS-20 was created for the appellant and on the desire of the appellant, he was also promoted to such post. He further contended that all along special rules have been made for the appellant and he has been favoured by the official respondents and in doing so, the official respondents committed grave illegality, for that, he being senior to the appellant in BPS-] 9 in the Health Department,his case for promotion was not considered for the post of BPS-20. 7. The learned counsel for the appellant in the end has contended that the very service appeal filed by the respondent before the Tribunal was time barred. 8. We have considered the submissions made by the learned counsel for the appellant as well as the learned Additional Ii Advocate General, Sindh and the respondent who appeared in person, and have also gone through the record of the case. :t 9. We will take up the question of limitation of filing of service appeal by the respondent before the Tribunal in the first j place. From the impugned judgment, we note that there is no discussion by the Tribunal on the point of limitation of the service appeal filed by the respondent before it but as the question of limitation being also a question of law, we would like to address the same. The appellant in the very memo of his service appeal Civil Appeal No. 1167 or 2070 before the Tribunal has raised grievance against the order dated 01.06.2018 of promotion of his junior/batch-mate i.e. the appellant from BPS- 19 to BPS-20 and has alleged that he has filed appeal in the Office of the Secretary Health through proper channel with an advance copy in the Office of the Worthy Chief Minister and Secretary, SGA&CD but as no response was received, he filed Service Appeal No.993 of 2018, in the Tribunal, which was decided by the Tribunal vide its order dated 30.08.2019, which is as follows:- "Learned Additional Advocate General present for the respondents. He files statement whereby the respondent No.] & 3 have adopted the written statement filed by the respondent No.02. The same is taken on record, copy supplied to the appellant. When pointed out to the appellant that the preliminary objections have been raised by the respondents that his departmental appeal has been filed before wrong forum and also the appellant did not file the service appeal immediately within the period of 30 days after the lapse of 90 days of his departmental appeal. Therefore he is supposed to wait for the final decision in the departmental appeal. After getting apprised of those objections, the appellant request for passing any appropriate order. The appeal being premature is dismissed. The appellant shall be at liberty to correct his steps under law and file appeal/review before the competent authority to decide it. He shall be at liberty to file appeal before this Tribunal in ease his proper petition/review/appeal is not disposed of within 90 days of the institution thereof. Appellant has expressed his apprehension that his fresh review/petition may not be received by Cvil Appeal No. 1 167 of 2020 -9 the competent authority on that the learned Additional Advocate General, Sindh assures that when the Petition/ review/ appeal is ready for the presentation he shall get it received by the concerned authority." 10. Pursuant to the order of the Tribunal, the respondent appears to have filed a review appeal/petition for cancellation of promotion order of the appellant and having received no response, again filed the service appeal before the Tribunal with the prayer seeking, inter alia, that promotion of the appellant as Director (Administration, Accounts and Development) (BPS-20) vide Notification dated 01.06.2018 may be cancelled/withdrawn and Promotion be made amongst the senior most officers, including the respondent on seniority-cum-fitness basis. The contention of the learned counsel for the appellant is that the limitati7n has to be counted from 01.06.2018 , on which date the Notification of Promotion to the post of BPS-20 of the appellant was issued. He has contended that review appeal was filed by the respondent on 1 3-09.2019, was barred by one ye, three months and 12 days. Though such a submission has been made by the learned counsel for the appellant but has not taken into consideration that earlier too the respondent had filed Service Appeal No.993 of 2018 and the Tribunal vide its order dated 30.08.2019 dismissed the same as premature and allowed the respondent to file appeal/review before the competent authority and then he was at libert y to file the appeal before the Tribunal within 90 days of filing of the appeal/review. It is apparent from the document available at page- 91 of the paper book that the respondent has submitted the Civil Appeal No. 1167 of 2020 - lo- review appeal/petition and the same was forwarded by the Medical Superintendent, Peoples Medical College Hospital, Nawabshah (Shaheen Benazir Abad) under his covering letter dated 13.09.2019 to the Secretary, Government of Sindh, Health Department, Karachi. Going through the order of the Tribunal dated 30.08.2019, in which the appellant was duly represented but he did not challenge the same, the respondent having submitted the review appeal/petition in terms of the order of the Tribunal and then filed the service appeal before the Tribunal on 24,12.2019, we are unable to find the service appeal to be time barred as claimed by the learned counsel for the appellant. 11. The submission of the learned counsel for the appellant that the Tribunal had no jurisdiction to entertain the service appeal filed by the respondent revolves around Section 4(b) of the Sindh Service Tribunals At, 1.973 (the Act of 1973), which provides that no appeal shall lie to a Tribunal against an order or a decision of a departmental authority determining the fitness or otherwise of a person, to be appointed to or hold a particular post or, to be promoted to a higher post or grade. The respondent in his service appeal before the Tribunal has made the following prayer: "Under the circumstances it is humbly prayed in the interest of justice. i. The promotion of Mr. Abdul Sattar Jatoi as Director Administration Accounts & Development BPS-20 be cancelled immediately from 01.6-2018 and the same may be filled by the way of promotion from amongst the seniors including appellant on the basis of fitness cum seniority in accordance with law by modification of rules of promotion. Civil Appeal No. 1167 of 2020 ii. The post of Director Administration Accounts & Development/ Director Development & Evaluation BPS-20 may be created in any of similar institution viz Civil Hospital Karachi/ PMC Hospital Nawabshah / C MC Hospital Uarkana/ Directorate General Health Services Sindh, Hyderabad as created at LMC Hyderabad for promotion of Seniors with financial benefits of same date (01 .06.20 18) including appellant based on fitness cum seniority in accordance with law. iii. Any other relief may be awarded as deemed just and proper." The above prayer shows that the respondent has challenged the promotion of the appellant as Director (Administration, Accounts & Development) (BPS-20) and has sought cancellation of notification dated 01.06.2018 by which the appellant was promoted. The respondent has also prayed that the post of Director (Administration, Accounts & Development) (BPS-20) be filled up by way of promotion from amongst the seniors including the respondent on the basis of seniority-cum- fitness and in accordance with law by modification of rules for promotion. The respondent has also prayed that the post of Director (Administration, Accounts & Development/ Director Development & Evaluation (BPS-20) may be created in any of the similar institutions viz Civil Hospital Karachi / PMC Hospital Nawabshah / CMC Hospital, Larkana/ Directorate General Health Services Sindh, Hyderabad, as is created in LMC Hyderabad. 12. It is to be noted that proviso (b) of Section 4 of the Act of 1973, as noted above, bars filing of a service appeal before the Tribunal against an order or a decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a Civil Appeal No. 1167 of 2070 - 12 higher post or grade. This provision deals with a situation that the departmental authority has dealt with the matter of promotions of all the employees eligible for promotion to a post and having found a certain employee to be fit for promotion, promoted him the remaining civil servants whose case for promotion was considered but found not fit to be promoted, such civil servants' service appeals before the Tribunal were not lie. In the present case, no such order or decision, determining the fitness or otherwise of a person to be appointed, has either been made by the departmental authority nor the question of fitness of the appellant to be promoted has at all been raised. The grievance: in the service appeal filed by the respondent before the Tribunal was that the departmental authority did not at all consider the case of the appellant's own batch-mates including the respondent who were working in the post of BPS-19 in the Health Department for promotion to the post of BPS-20, in that, only the appellant was picked up by the departmental authority for grant of promotion to him in BPS-20 and the senior batch-mates of the appellant have altogether not been considered for granting of promotion to the post of BPS-20. Had the departmental authority considered the case of promotion of all the batch-mates of the appellant working in BPS-19 in the Health Department and the respondent having been found not fit for promotion to the post of BPS-20 by the departmental authority, the service appeal on such question would have been barred before the Tribunal, such is not the case in hand before the Court. U Civil Appeal No.1 167 of 2020 'IL 13. The next submission of the learned counsel for the appellant is that on repeal of the Act of 2011, the post of District Officer Planning and Development (BPS-19) in the Health Department was abolished and the appellant was justifiably placed in surplus-pool and being available in the surplus-pool SGA&CD was competent to post the appellant in any other department and on any other post. 14. We note that although the Act of 2011 was repealed but the Health Department continued to operate, in that, as contended by the learned counsel for the appellant himself, the I respondent continued to serve the said department It seems that out of all the District Officers (Administration, Accounts & Development) (BPS-19) only the appellant's name appears to have been put in surplus-pool, upon which the wish list of the appellant started and through notification dated 02.07.2013, the competent authority eagerly complied with such wish of the appellant by inducting him in the Provincial Secretariat Service cadre in the equivalent post of BPS-19 by notification dated 10.01.201.3. Such absorption/ induction of the appellant was withdrawn on 02.07.2013, upon which the appellant himself made an application dated 25.07.2013 to the Chief Secretary I Government of Sindh requesting that he may be posted/absorbed back against non-cadre Position at Liaquat University Hospital, Hyderabad/J500 by re-designating his existing post of BPS- 19 as Director (Administration, Accounts and Development). On this request of the appellant, summary dated 12.12.2013 was floated for the approval of the Chief Minister, Sindh, K, Civil Appeal No. 1167 o12020 - 14 recommending that one post of Additional Medical Superintendent (BPS-19) in Liaquat University Hospital, Hyderabad may be re- designated on non-clinical side as Director (Administration, Accounts & Development) (BPS-19) and the appellant be absorbed against such post. Vide notification dated 09.01.2014, the appellant was posted as Project Director, Project Management & Implementation Unit (PMIU), Education & Literacy Department. This notification was cancelled /withdrawn vide notification dated 20.08.20 14 and the appellant was asked to report to his parent department as District Officer (Administration, Accounts & Development) (BPS-19). Through an order dated 09.11.2016, one post of Additional Medical Superintendent (BPS-49), Liaquat University Hospital, Hyderabad was sanctioned and re-designated as Director (Administration, Accounts & Development) (BPS-19) on non-clinical side for specific absorption of the appellant. Through notification dated 25.11.2016, the appellant was absorbed as Director (Administration, Accounts & Development) (BPS-19) in the Liaquat University Hospital, Hyderabad. The wish list of the appellant did not end there and the departmental authority continued to be too eager to accommodate him to the post of appellant's own desire. For doing so, through notification dated 06.03.2018, the rules were amended, so that the appellant could be appointed to the post of Director (Administration, Accounts & Development) in BPS-20 in the Health Department. This amendment in the rules was made person specific to accommodate the appellant alone and the appellant, out of so many other batch-mates in BPS-19 in the Health Department, Civil Appeal No. 1167 of 2020 - ' - was granted promotion vide notification dated 01.06.2018 from BPS-19 to BPS-20 and the post of Director (Administration, Accounts & Development) was shown to be the post of BPS-20. 15. The law regarding grant of promotion by the competent authority is well settled that the competent authority while considering grant of promotion is duty bound and obliged under the law to consider merit of all the eligible candidates and after due deliberations, to grant promotion to such eligible candidates who are found to be most meritorious among them. The law does not permit to the competent authority to just pick one specific person and amend the rules for him and then create a post and oblige and grant promotion to that one person. The rule is that the I competent authority is bound to consider all eligible candidates for promotion on merit. This is the requirement of Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973, which lays down as a command that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, whoever he may be. Further Article 25 of the Constitution as a Fundamental Right, prohibits discrimination and requires that all citizens are equal before law and are entitled to equal protection of law. 16. As noted above, the respondent and the appellant were appointed on 16.03.1992 as Planning Officers (BPS-17) in the Health Department, Government of Sindh on the recommendation Fc of the Sindh Public Service Commission, which contain the merit list where the name of the respondent was mentioned at Serial No.5, while the name of the appellant was mentioned at Serial ii Civil Appeal No. 1167 of 9.020 No.9. They were promoted together as Deputy District Officers (P&D) (BPS-18) vide notification dated 11.10.2004, in which the H name of the respondent was at Serial No.3, while that of the appellant was at Serial No.5. The respondent and the appellant were again promoted together as District Officers (Administration, Accounts & Development) (BPS-19) by the Provincial Selection Board No.11 on 27.10.201.0, wherein the name of the respondent was at Serial No.2, while the appellant was at Serial No.5. They continued to remain in BPS-19 while through the impugned notification dated 01.06.2018, only the appellant was granted promotion to the post of BPS-20 and that too by making specific amendment in the rules and creating a post of Director (Administration, Accounts & Development) in BPS-20. 17. It is an admitted fact that both the respondent and the I appellant belong to one and the same cadre in the Health Department, Government of Sindh and at the time when the appellant was promoted to the post of BPS-20, the other batch- mates of the appellant in BPS-19 in the Health Department who were even senior to him from the very beginning of their service career, were ignored, in that, their cases of promotion were not put up before the competent authority for determination of their merit for promotion to the post in BPS-20. It was not at all argued before us that the respondent was not eligible to be considered for promotion to the post of BPS-20 when the appellant was granted promotion to the post of BPS-20. Right to promotion is not an illusionary nor a perfunctory right which could be ignored casually. Non-considering of an officer being equally eligible for Civil Appeal No.] 167 of 2020 -17- promotion is a serious matter and not only undermines discipline but creates serious bad blood and heart burning among the rank and file of civil service. In the matter of civil service, there should not at all be any instance where the competent authority is found to be accommodating any one civil servant for grant of promotion and availing of better service benefits leaving all other equals and even seniors abandoned. 18. This Court in the case of Secretary Agriculturç Government of the Punjab, Lahore vs. Muhammad Akram (2018 SCMR 349) has specifically held that the creation of a specific post for the benefit of one specific civil servant was illegal. In the matter of Contempt of Court Proceedings against Chief Scctary, Sindh and other (2013 SCMR 1752) this Court has held that "the impugned legislation on absorption is persons/class specific as it extends favours to specific persons infringing the rights guaranteed to all the civil servants under the service structure provided under Articles 240 and 242 of the Constitution. ... In the case in hand the impugned legislation, prima facie, has been made to protect, promote and select specific persons who are close to centre of power, and has altered the terms and conditions of service of the civil servants to their disadvantage in violation of Article 25 of the Constitution". It was also held that "no civil Ii servant of a non-cadre post can be transferred out of cadre to be J absorbed to a cadre post which is meant for recruitment through competitive process". In the case of Baz Muhammad Kakar and others vs. Federation of Pakistan and others (PLO 2012 SC 870) 1 this Court observed as follows: I Civil Appeal No, 1167 or 2020 18- "The legislature cannot promulgate laws which are persons/class specific as such legislation instead of promoting the administration of justice caused injustice in the society amongst the citizens, who were being governed under the Constitution." 19. In the famous case of Tang Aziz-ud-Din and others (2010 SCMR 1301) leading with the question of promotion to civil servants, this Court has observed as follows: "27. ... It is a settled principle of law that object of good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily and without application of mind but objective can be achieved by following the rules of justness, fairness and openness in consonance with the command of the Constitution enshrined in different articles including Articles 4 and 25. Once it is accepted that the Constitution is the supreme law of the country, no room is kit to allow any authority to make departure from any of its provisions or the law and the rules made thereunder." It was further observed as under: "it is the duty and obligation of the competent authority to consider the merit of all the eligible candidates while putting them in juxtaposition to find out the meritorious amongst them otherwise is one of the organs of the State i.e. Executive could not survive as an independent organ which is the command of the Constitution. Expression 'merit' includes limitations prescribed under the law. Discretion is to be exercised according to rational reasons which means that; (a) there be Finding of primary facts based on good evidence; and (b) decisions about facts be made, for reasons which serve the purposes of statute in an p 0 Civil Appeal No 1167 of 2070 - 19- intelligible and reasonable manner. Actions which do not meet these threshold requirements are considered arbitrary and misuse of power 20. We have also gone through the case law cited by the learned counsel for the appellant and note that in Shafi Muhammad Mughal's ease (supra) the DPC has considered the ease of promotion of the petitioner therein along with respondent No.6 therein and while he was superseded, respondent No.6 was granted promotion to the rank of Superintendent of Police (BPS- 18), and while referring to the ease of Muhammad Anis and others vs. Abdul Haseeb (PLD 1994 SC 539), the Court held as follows: "1.3. Thus, it would seem that the expression "eligibility" and "fitness" are distinct and are for different purposes. The Legislature in its wisdom has left the issue of fitness at the discretion of the competent authority for the obvious reason that the authority looking background and the performance would be in a better position to determine the issue of fitness than the Tribunal or the Court. In this particular case, as is evident from the report, referred to earlier, it is clear that general reputation of the petitioner in the past was not satisfactory, rather it was poor. Nothing material has also been brought on record to substantiate the plea that said Vigilance Report H was false." In Zafar igbal's case (supra) the petitioner was denied promotion by the Departmental Promotion Committee on the ground that he was not found fit for promotion, against which he filed a service appeal before the Service Tribunal with the prayer of granting him promotion on the basis of seniority. The Service Civil Appeal No. 1167 of 2020 20 Tribunal dismissed his service appeal, which order of the Tribunal was maintained and leave was refused by this Court. In Miss Zubaida Khatoon's case (supra) the Selection Board considered the case of promotion of the respondent therein and found her unfit for promotion, whereas the Selection Board promoted the appellant therein. The respondent challenged the non-promotion by the Selection Board by filing of a writ petition in the High Court which was allowed and the notification issued by the Selection Board was set aside. Leave to appeal was granted in the matter and after elaborate consideration, this Court observed as follows: "18. Learned counsel was specifically confronted with the service profile of the respondent, reproduced in paragraph 17 of the impugned judgment and the comparative service record of both the parties as given in paragraph 25 of the impugned judgment. He could neither controvert the factual aspect of the said comparative chart nor could he join issue with the observations made by the court which have been reproduced in the preceding para. He mainly reiterated the argument that the learned High Court could not have embarked upon factual inquiry as the same was neither tenable under Article 199 of the Constitution nor permissible in view of the specific bar contained in Article 212 of the F Constitution. The argument of bar of jurisdiction has already been repelled in above paragraphs. So far as the contention that the learned High Court could not undertake a factual inquiry is concerned, the same is misplaced, first because the High Court was not recording any new evidence but was proceeding on the basis of the admitted facts and second, if having examined the admitted facts, it had come to the conclusion that the authority had passed the order in colourable Civil Appeal No. 1167 of 2020 exercise of powers conferred on it, or an authority having power to promote or appoint to a particular post had done so against the law or without jurisdiction or while doing so as for mala fide reasons had not taken into consideration the relevant record, it could come in aid of person aggrieved to redress the wrong. The impugned judgment on that score is unexceptionable. However, we find that after annulling the notification which had been impugned before the learned High Court, the court could not have directed promotion of respondent No. 1 and instead should have left the matter to be decided by the Promotion Committee afresh as the said authority was competent to pass appropriate order after de novo exercise. 19. For what has been discussed above, this appeal is partly allowed and while upholding the impugned judgment insofar as it annulled the notification dated 13-8-2001, we direct the concerned Promotion Committee to decide the matter afresh within two months of the receipt of this judgment." The cited cases on the question of jurisdiction of the Tribunal are distinguishable on the sole ground that neither the ease of respondent was placed before Departmental Promotion Committee nor did it consider the case of promotion of the respondent, who was eligible for being Considered for promotion along with the appellant to the post of BPS-20. No fitness for promotion of the respondent was at all determined. 21. Messrs Associated Cement Companies Ltd's ease -21 (supra) and Dr. Ehsan-ul ..J-{aq's ease (supra) have been relied upon by the learned counsel for the appellant to contend that the respondent was not an aggrieved person and his terms and Bench-I 'APPROVE]) FOR REPORTING' Mahtab H. Sheikh/* Announced on 10 61 2ø22 at c.I a Civil Appeal No.] 167 of 9,020 22- conditions of service were not adversely effected. We may note that the very non-consideration of the respondent for grant of promotion to the post of BPS-20 along with his batch-mates, which included the appellant, whose case only out of the total number of his batch-mates was considered for promotion and also granted promotion by making amendments in the rules and creating the post specifically for him, did make the respondent an aggrieved person for that his right to be considered for promotion along with his batch-mates was at all not dealt with by the competent authority. The rule laid down in the two cited judgments, therefore, does not apply to the case in hand. 22. Abdul Sattar's case (supra), Anwarul Hag's case (supra), the Chairman, PIAC's case (supra), M.A. Ghafoor's case (supra) and Government of Balochistan's case (supra) are all relied upon on the point of limitation of the service appeal filed by the respondent. Such aspect of the matter has already been dealt with hereinabove and apparently, the cited judgments have no application to the case in hand. 23. For what has been discussed above, we find no illegality in the impugned judgment of the Tribunal and are notj persuaded to interfere with the same. The appeal is, therefore, dismissed.

{'id': 'C.A.1167_2020.pdf', 'url': ''}

{'id': 'C.A.1167_2020.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Mian Saqib Nisar Mr. Justice Mushir Alam Mr. Justice Maqbool Baqar Civil Appeals No.1169 & 1192 of 2014 Against judgment dated 05.08.2014 of Election Tribunal, Lahore, passed in Election Petition No.226 of 2013. Ch. Muhammad Ashraf Warraich Appellant (in CA#1169/14) Muhammad Nasir Cheema Appellant (in CA#1192/14) VERSUS Muhammad Nasir Cheema, etc Respondents (in CA#1169/14) Ch. Muhammad Ashraf Warraich, etc Respondents (in CA#1192/14) For the Appellant(s): Ch. Aamir Rehman, ASC (in CA#1169/14) Ch. Khurshid Anwar Bhindar, ASC (in CA#1192/14) For Respondent No.1: Ch. Khurshid Anwar Bhindar, ASC (in C.A.No.1169/14) Ch. Aamir Rehman, ASC (in CA#1192/14) Date of Hearing: 11.05.2015 JUDGMENT Mushir Alam, J-. Through this single judgment, we intend to decide the listed Civil Appeal No.1169 of 2014, filed by Ch. Muhammad Ashraf Warraich, and Civil Appeal No.1192 of 2014, filed by Muhammad Nisar Cheema. 2. Muhammad Ashraf Cheema, also Respondent No.1 in Civil Appeal No.1192 of 2014 (hereinafter referred to as the ‘Returned Candidate’), has been non-seated by the learned Election Tribunal, Lahore, vide the impugned decision dated 05.08.2014 and at the same time it directed the Election Civil Appeals No.1169 & 1192 of 2014 2 Commission of Pakistan to take necessary steps for holding Bye-Elections in 33 polling stations of the Constituency of PP- 97, Gujranwala. Second mentioned Appeal has been filed by Muhammad Nasir Cheema, who is Respondent No.1 in first mentioned Civil Appeal, (hereinafter referred to as the ‘Election Petitioner’), is also aggrieved by the portion of the same impugned decision, declining to declare him elected member from the said constituency, has prayed for modification of the impugned decision of the Election Tribunal to such an extent. 3. Briefly stated the facts appear to be that the elections for Provincial Assembly for Constituency PP-97, Gujranwala-VII, comprising 120 polling stations were held along with general elections throughout the Province of Punjab on 11.05.2013. Both the contestants along with 28 other candidates contested for the Constituency, official result of the election was declared on 13.06.2013 (Ex.PW.33/H). As a result of the count in form XVI, first three candidates secured votes as follows: - i. Ch. Muhammad Ashraf Warraich, Returned candidate secured……………..29,756 votes; ii. Muhammad Nasir Cheema Election Petitioner secured ……………..22, 335 votes; iii. Ghulam Sarwar Resp.No.25/Runner up secured……..23, 871 votes. 4. None other than the Election Petitioner, Muhammad Nasir Cheema challenged the election through Election Petition No.226 of 2013 essentially on the ground summarized in the impugned decision of the Election Tribunal as follows: - “GROUND OF ATTACK NO.1 That the petitioner defeated all his political rivals including the returned candidate and the runner up at 33 polling stations of the Constituency fully particularized in the statement, Ex.PW-33/E; that his polling agents received copies of statements of the count in form XIV regarding said 33 polling stations from the Presiding Officers and passed on to the petitioner, according to which the petitioner secured 26,769 votes whereas the returned candidate obtained 25,473 votes and that the Returning Officer tempered with the statements of the count in form XIV and reduced the votes polled to the petitioner from 26,769 to 22,335. GROUND OF ATTACK NO.2 Civil Appeals No.1169 & 1192 of 2014 3 That the General Election-2013 from Constituency No.PP- 97, Gujranwala-VII was not conducted in accordance with delimitation of the constituencies approved and notified under the Delimitation of Constituencies Act, 1974; that according to notified delimitation of constituencies vide notification dated 28th June, 2002 and notification dated 08th April, 2013, Gujranwala Cantt. was included in Constituency No.PP-96- Gujranwla, that villages Baddoke, Hardo Amin Pur, Bhaghat Garh and Dhippha were made part of Constituency No.PP-97 by the District Returning Officer through poling scheme despite the fact that the above said villages being located within the territorial limits of Cantonment, Gujranwala should have been made part of Constituency No.PP-96, Gujranwala and that the election held on 11.05.2013 at the polling stations of aforesaid villages under the said polling scheme being offensive to the notified delimitation of constituencies, was null and void.” 5. However, serious challenge before this Court was confined to first mentioned ground. From the record, it is evident that Election Petitioner and the Returned Candidate participated in the in the proceedings and other contesting candidate were proceeded against ex-parte. 6. After exchange of the pleadings, the learned Election Tribunal framed the issues as follows: - “1. Whether the election petition is actuated by bad faith, if so its effect. OPR1 2. Whether the election petition is hit by the provisions contained in section 55(1)(B) of the Representation of People Act 1976? OPR1 3. Whether the petitioner is estopped by his conduct to file this petition OPR1 4. What is effect of preliminary objections number A to D and F of the written statement OPR1 5. Whether the election of respondent No.1 is liable to be declared as void and the petitioner is entitled to be declared as Returned Candidate for the reasons mentioned in the election petition? OPR1 6. Relief” 7. Issues No.1 to 4 were not contested by the Returned Candidate, therefore, were decided in favour of the Election Petitioner. Issue No.5, being pivotal, was seriously contested by the disputants. Since burden to prove subject issue was on the Election Petitioner, he examined himself as RW.33 and produced his 30 polling agents, (PW-1 to PW-32) who supported his case that they had collected the copies of Civil Appeals No.1169 & 1192 of 2014 4 statements of count in form XIV issued by the Presiding Officers of their respective polling stations. He produced consolidated result of 33 polling stations Ex.P-33/E (available at pages 316 to 319 of CA#1169/2014) which shows total vote casted in his favour whereby he secured 26,769 votes as against 25,473 votes polled by the Returned Candidate. The Election Petitioner produced the count of form XIV of all the 33 polling stations himself and through his witnesses at trial. The Returned Candidate (RW-33) examined 32 out of 33 Presiding Officers (RW1-RW32) from the disputed polling stations. He and his witnesses produced copies of the statements of the vote counts in form XIV. Result of the counts as claimed by the disputant candidates emerged as follows:- Sr.No. Polling station No. Number of poled votes to the petitioner as per statement of the count relied upon by the petitioner Number of polled votes to the petitioner as per statement of the count relied upon by the returned candidate Number of polled votes to the returned candidate as per statement of the count relied upon by the petitioner Number of polled votes to the returned candidate as per statement of the count relied upon by the returned candidate 1. 2 170 70 171 271 2. 4 238 138 174 274 3. 4 359 249 367 477 4. 6 285 135 145 295 5. 8 368 218 279 429 6. 9 397 297 374 474 7. 17 577 377 461 661 8. 59 306 156 480 630 9. 62 317 214 175 278 10. 78 135 35 152 252 11. 79 130 30 106 206 12. 80 259 59 260 460 13. 81 202 52 202 352 14. 82 132 32 120 220 15. 85 278 178 264 364 16. 87 226 26 159 359 17. 88 134 34 137 237 18. 91 287 87 175 375 19. 92 161 61 195 295 20. 93 189 39 223 373 21. 94 169 19 183 333 22. 97 133 33 165 265 23. 98 275 75 263 463 24. 99 190 40 173 323 25. 100 169 49 162 282 26. 101 140 40 146 246 27. 105 434 334 141 241 28. 106 364 264 157 257 29. 110 313 213 70 170 30. 113 471 271 210 410 31. 114 151 00 180 180 32. 115 430 230 306 506 33. 117 599 499 260 360 Grand Total 8988 4554 7035 11318 Civil Appeals No.1169 & 1192 of 2014 5 8. It was noted by the learned Election Tribunal that the statements of the count in form XIV as relied upon by the Returned Candidate falls to the ground, if the statement of the count adduced by the Election Petitioner is taken into consideration. Conversely, if the result of the vote counts relied upon by the Runner Up is taken as true, the Election of Returned Candidate will not be open to any exceptions. 9. Since the vote count in Form XIV produced by the contesting parties was conflicting. To resolve the controversy learned Election Tribunal, at the behest of the Election Petitioner, in exercise of powers under Section 46 of the Representation of People Act, 1976 (RoPA, 1976) deemed it expedient to appoint a Commission (Mr. Sultan Ahmad, Additional District and Sessions Judge, (Retd.), to examine the election record of 33 challenged Polling Stations and submit report. The Commission completed the exercise in presence of contestants and also appeared as Tribunal Witness (TW-1). He produced the Report as Ex. TW1/A and Ex. TW1/B. He deposed that all the bags containing the election material including statutory forms were not sealed when received by the Commission. 10. To examine the effect of the unsealed bags and to ascertain the circumstances, how and when such bags were de- sealed, learned Election Tribunal also examined Mr. Rehan Bashir, Returning Officer as TW-2, Mr. Shakeel Ahmed, the then District Accounts Officer, Gujranwala as TW.3 and Syed Safdar Raza, Head Treasurer, Gujranwala as TW.4. On the strength of the evidence so adduced, the learned Election Tribunal in paragraph 16 observed that “After coming to the conclusion that the Returning Officer deposited unsealed election bags with the returning Officer attempted to conceal the factual position from this election Tribunal, which persuaded him to deposit unsealed election bags with the District Accounts Office is open to serious exception.” It was thus concluded that “Here I would say that the reasons and motive behind deposit of the unsealed election bags in the district Treasury is shrouded in Civil Appeals No.1169 & 1192 of 2014 6 mystery. Hence I feel no difficulty in concluding that the record found by the Commission from unsealed Bags is worthless”. 11. Learned Election Tribunal, took into consideration, statements of the Presiding Officer of polling station No.6, Dr. Shaheen Naqvi (RW.3), Presiding Officer of polling station 78, Mr. Abdul Hameed Khalid (RW.8), Dr. Imtiaz Husain, Presiding Officer (RW.10) of polling station No.80 (PP-97), Ms. Rakshanda Iqbal (RW.14) Presiding Officer of polling station No.99, Ms. Faiza Khan (RW.15) Presiding Officer of polling station No.101 and Mr. Muhammad Bilal (RW.30), Presiding Officer of polling station No.59. It was noted that all the six Presiding Officers, who were produced by the Returned Candidate, owned the statement of count prepared by them in form XIV, confronted to them by the Election Petitioner. They had no satisfactory explanation to offer to the contradictory statement of count contained in form XIV prepared by them and produced by the Returned Candidate. Learned Election Tribunal also carefully examined the report of the Commission (Ex.TW.1/A and Ex.TW.1/B) constituted under Section 46 of RoPA, 1976. It has also come on record that the Returning Officer, Rehan Bashir (TW-2) “did not carry out the exercise of consolidation of results qua the rejected votes in terms of section 39(3) of the Act, 1976” and that “he failed to discharge his legal obligation”. Thus the Election Tribunal observed that the all the six presiding officers erroneously deposed that they had correctly prepared the statements of the counts as presented to the Election Tribunal. 12. Learned Election Tribunal, in paragraph 18 of the impugned Decision, also took stock of the fact that as per statements of count in Form XVI, of the six (06) challenged PS namely PS No.2, (271 vote) PS No.17, (votes 661), PS No. 62, (278 vote), PS No. 81, (votes 352) PS No.91(375 votes) and PS No. 93 (373 votes) total 2260 votes were not found. It was thus concluded that the ‘Returned Candidate’ could not substantiate that he secured (2260) votes from said six challenged PS. In paragraph 19 of the impugned Decision it was noted that Form XIV were missing in bags of nine (09) challenged PS No.2, 17, Civil Appeals No.1169 & 1192 of 2014 7 62, 81, 82, 91, 93 101 and 114 for the comparison with the conflicting statements contained in form XIV, relied upon by the disputant. In paragraph 20 of the Decision, it was noted that from the bags of five (05) challenged PS (No.2, 80, 85, 93 and 94), not a single counterfoil was available though the form XVI reflected that 4,302 votes were polled at the subject polling stations. Thus, the validity of the 4,302 polled votes was held to be seriously questionable. 13. Learned Election Tribunal, thoroughly and meticulously thrashed out the evidence led by the parties and took note of the fact that the number of polled ballots did not tally with the available record, as could be seen from the tabulation of 33 challenged polling stations (Typed Page 20 of the impugned judgment). It shows that total votes casted in favour of the contesting candidates as per consolidated statement in form XVI were recorded as 34,229. Whereas, total number of votes actually found in the bags were only 19,300. There is no explanation of shortage of 14,929 votes missing from the bags. Learned Election Tribunal, also found that total number of counterfoils did not tally with total number of polled ballot papers found from the bags. It was admitted by the Returning Officer (TW.2) at trial that he did not re-examine the rejected votes, excluded from the count by the Presiding Officer as was required under section 39(3) of the RoPA, 1976. Discrepancy in total number of rejected votes as per Form XIV were 728, whereas only 497 rejected votes were physically found in the bags. The state of available and missing record as noticed in various tabulated statements as discussed in the Decision and as noted and discussed above, demolished the cause of the Returned Candidate. On the strength of evidence as discussed above, the learned Tribunal came to the following conclusion: - “26. Keeping in view the above discussed factual and legal position, the credibility, legality and transparency of the election of returned candidate from 33 polling stations of the Constituency have been eroded. According to the consolidated statement of the count under challenge the returned candidate was ahead of the runner up by 5,885 votes, whereas the returned candidate defeated the petitioner by 7,421 votes. The returned candidate claimed to have obtained 11,291 Civil Appeals No.1169 & 1192 of 2014 8 votes at 33 polling stations. After coming to the conclusion that election of the returned candidate from 33 polling stations is null and void with no legal effect, the result of election favourable to the retuned candidate falls to the ground mathematically and automatically. I, therefore, declare election of the returned candidate to be void. Resultantly, the position of respondent No.1 as Member, Provincial Assembly, Punjab from the above said constituency has ceased to exist. Issue No.5 is answered to the above effect. 27. Onus to prove issues No.1 to 3 and 4 was on the respondent No.1/retuned candidate. During the course of arguments, learned counsel for the returned candidate did not utter a single word regarding these issues, which are disposed of as having not been pressed. 28. The Election Commission of Pakistan shall take necessary steps for holding bye-election from the above said 33 polling stations of the constituency (mentioned in the list, Ex.PW-33/E) in accordance with law. The District Returning Officer shall prepare polling scheme of Constituency No.PP-97, Gujranwala afresh strictly in line with delimitation of the constituencies already notified by the Election Commission of Pakistan.” 14. Learned ASC for the Returned Candidate, since non- seated, contended that after the evidence of the parties was concluded, in a bid to make fishing enquiry, the Election Petitioner applied to the Election Commission for inspection of record, said application was dismissed by the Election Commission on 21.4.2013, which order was challenged and is still subjudice before the High Court in Writ Petition No.11615/14. It was, therefore, contended that learned Election Tribunal fell into error by considering such request under section 46 of the RoPA, 1976 vide its order dated 15.5.2014. 15. It may be observed that candidature of a candidate could be challenged under the RoPA, 1976 at three different stages, right from the day of nomination till 45 days after the declaration of the official result. First stage is pre-election challenge at the time of scrutiny of nomination papers. Challenge to the candidature could be thrown by any of the contesting candidate, their agents, proposer, seconder, electors by filing objections against any of the candidate before the Returning Officer, on the grounds enumerated in clauses (a) to (d) to subsection (3) and subsection (5A) of Section 14 of the RoPA. Any decision rejecting or accepting nomination paper, Civil Appeals No.1169 & 1192 of 2014 9 passed by the Returning Officer, is subject to right of appeal before the Tribunal comprised of not less than two and not more than three High Court Judges. Appeal is required to be decided summarily within prescribed time, if time lapses, appeal by virtue of deeming provision subsection (6) thereof is deemed to be rejected. Second stage is post-election challenge to the election of returned candidate before the Election Commission of Pakistan, under Section 103 AA of the RoPA, 1976. Election Commission, after such summary enquiry as to grave illegality or violation of the provisions of RoPA, 1976 or the rules framed there under, may declare the poll in any constituency as void and may call upon constituency to elect member, but such jurisdiction to declare the poll void, could be exercised before the expiry of sixty (60) days after the publication of result of the election (per section 42 of RoPA), where after, the Election Commission, becomes functus officio, and the returned candidate is deemed to be elected, but subject to the decision of Election Tribunal, constituted Section 57 of RoPA. Provided such challenge is thrown, by any of the contesting candidate. Third opportunity to challenge the election of the returned candidate becomes available post- election, to be made by any candidate of the subject constituency, before the Election Tribunal constituted under Section 57 ibid, within forty five (45) days from the date of publication in the official gazette of the name of the returned candidate, of the subject constituency in the manner provided under the RoPA, 1976 itself. 16. In cases of allegation of misconduct, the Returning Officer on the application of a contesting candidate or on the direction of Election Commission, has power under Section 39(3) of RoPA, 1976 to open packets, examine and inspect the ballot papers in presence of contesting parties or their representatives. Such request was made by the Election Petitioner on the following day of election, but it was declined by the Presiding Officer [Ex.P-33/F, available at page 320 of CA#1169/14]. After the consolidation of result, such power Civil Appeals No.1169 & 1192 of 2014 10 rests with Election Commission, which was moved on 18.5.2013 [Ex.P-33/G, available at pages 322 of CA#1169/14] to scrutinize result of 33 polling stations but, was also rejected by the Election Commission, through order dated 13.6.2013, on the ground inter alia “that the election Tribunal, which have been established and have commenced their work. If the Petitioner approaches the election Tribunal for the redress of his grievances his case would be decided expeditiously.” 17. Election Commission of Pakistan, issued Notification dated 22.5.2013 declaring the Petitioner as Returned Candidate. On 03.6-2013, Election Tribunals were also set up in Province of Punjab under section 57 of RoPA, for the trial of election disputes. Consequently, Election Petitions was filed, subject matter of instant Appeal. 18. It was urged by the learned ASC, for the Petitioner, that the appointment of the Commission, to examine the bags of the 33 Polling Stations was not justified, as similar request was declined by the Returning Officer and so also by the Election Commission, for the recount of the votes in 33 Polling Station. It was contended that it was the duty of the polling staff to observe the law and the rules on the subject and on failure of the same, the appellant cannot be penalized. According to learned counsel, the election was held in large number of polling stations, in a peaceful manner, and no objection to majority of the polling stations was taken. 19. Adverting to the contention of the learned ASC, for the Appellant that after the dismissal of application of the Election Petitioner by the Returning Officer and the Election Commission of Pakistan as noted above, the Election Tribunal, committed grave illegality to allow such application under Section 46 of the RoPA, 1976 appointing Commission to inspect the record of the 33 challenged Polling Stations is concerned. It may be observed that the Election Tribunals are bestowed power to inspect and examine the ballot papers of all sorts i.e. polled, rejected, or spoiled etc. Such powers could not be invoked by Civil Appeals No.1169 & 1192 of 2014 11 any party to the election Petition on mere ipsi dixit nor, could be exercised by the Election Tribunal on its own whims and fancy and or mechanically. Party seeking such recourse or inspection and examination of counted ballot paper has to demonstrate and show to the satisfaction of the Election Tribunal that there had been improper, reception, refusal, or rejection of votes had affected the outcome of the election materially. Election Tribunal, enjoys elaborate and extensive authority to carry out the exercise of examination of polled ballot either himself or, through commission and may order inspection and or to recount of the ballot papers, however, same are to be exercised with circumspection and care by application of mind on the strength of tangible and material evidence, prima facie establishing that there had been wrong inclusion or exclusion of the ballot paper in the course of ballot count that had direct and martial bearing on the final outcome of the result of the election. 20. As noted above, since the Election Tribunals in Punjab were already notified and after expiry of statutory period of 60 days from notification of returned candidate, the Election Commission, had no authority to adjudicate upon the controversy as to the examination of the ballot record of challenged Polling Stations and had rightly directed the election Petitioner to approach the Election Tribunal. Similar controversy came up before this Court, in the case cited as “Ehsanullah Reki v. Abdul Qadir Baloch (2010 SCMR 1271), this Court, while examining the power of Election Tribunal, under Section 46 of RoPA, 1976, held that “the Election Tribunal cannot only appoint a Commission but also direct opening of packets of counterfoils and certificates or the inspection of any counted ballot papers with a rider that in carrying into effect an order for inspection of ballot papers, care shall be taken that no vote shall be disclosed until it has been held by the Election Tribunal to be invalid”. Subsection (3) of Section 46 RoPA, 1976 attaches great deal of sanctity to the production of a document by the Commission appointed by the Election Tribunal, which is Civil Appeals No.1169 & 1192 of 2014 12 treated as conclusive evidence that the document relates to the election specified in the order and any endorsement made by the Commission, on any ballot paper or packet of ballot paper or documents so produced shall be prima facie evidence that the ballot papers or documents are what the endorsement states them to be. Therefore, contention of the learned ASC for the Petitioner that the Election Tribunal had no jurisdiction to appoint the Commission for the purpose of examination of polled ballot or to undertake such exercise itself, in view of discussion made above, and under given facts and circumstances, is devoid of merits. 21. The Commission, as appointed by the Election Tribunal, was also examined as the Tribunal Witness TW-1. Lengthy cross examination by the Returned Candidate could not demolish the credibility of the Report EX-TW-1/A and Ex- TW-1/ B, nor was he able to point out any error in the tabulated statement of votes count actually found and as relied upon by the disputants. Learned ASC for the Returned Candidate, could not bring home the objections as to authority and jurisdiction of the Election Tribunal to appoint “the Commission” and empowering “the Commission” to examine the Bags of the challenged Polling stations and submit report. 22. Before adverting to examine the power and jurisdiction of the Election Tribunal under Section 67 ibid and other enabling provision to declare “the election of returned candidate void”, would amount to “declaring the election as a whole void” and as a consequence; direct the election of whole of the constituency or “partial poll” could be ordered, as has been done in the instant case. We have noted that the “Election Commission,” in post election scenario, though for a limited period within 60 days after declaration of official result has to some extent concurrent jurisdiction and power to declare the “poll in any constituency” void under section 103-AA ibid, which power, is akin to the power of the Election Tribunal under clause Civil Appeals No.1169 & 1192 of 2014 13 (b) of section 67 of the RoPA, “declaring the election of the returned candidate to be void” 23. In numbers of cases, various High Courts and so also this Court had the occasion to examine the power of the Election Commission to declare the poll, in any constituency to be void and whether such powers, includes declaring and to direct re-poll partially in some of the polling station and not in the entire constituency. In the case of Ghulam Ali v. Election Commission (PLD 1991 Karachi 396), learned Division Bench maintained the order of re-poll in 3 polling station, made by the Election Commission. In the case reported as Salahuddin Tirmizi v. Election Commission of Pakistan (2008 YLR 1624), learned Division Bench of the Peshawar High Court, maintained the order of the Election Commission of Pakistan, ordering re-poll in two polling stations including one female polling station. In the case of Wahid Bukhash Khan Bhayo v. Ghous Bukhash Maher (CLC 2012 Karachi 39), learned single judge of the Sindh High court relying on the case of Aftab Shaban Merani v. Muhammad Ibrahim (PLD 2008 SC 779), maintained the order of Election Commission directing re-poll in only 47 polling stations. In the case of Behram Khan v. Abdul Hameed Khan Achakzai (PLD 1990 SC 352), this Court upheld the order of the High Court, maintaining order of the Election Commission directing re-poll in some of the challenged Polling Station. In the case of Manzoor Hussain v. Election Commission (2004 SCMR 672) in which case, the Election Commission, ordered re-polling in one of the Polling Station, which was shifted on the day of election without any intimation, such order was unsuccessfully challenged in the High Court and this Court refused leave to appeal. Five member bench of this court in the case reported as Aftab Shaban Mirani v. Muhammad Ibrahim (PLD 2008 SC 779), had the occasion to examine the power of the Election Commission to declare the poll in any constituency void, under Section 103-AA and other enabling provisions of the RoPA, 1976 read with Article 225 of the Constitution of Pakistan, 1973, and at page 814; held that the “power of declaring the election partly void and re-polling at Civil Appeals No.1169 & 1192 of 2014 14 some polling station is included in the power of declaring election of the constituency as a whole void”. And at page 817 interpreted the expression “in the constituency void” as used in section 103-A ibid, is not only referable to the whole constituency rather its true import is election in the constituency as a whole or at one or more polling station”. 24. Now adverting to more serious a challenge to the power and authority of the Election Tribunal to order partial poll in any constituency, it would be beneficial to glance through relevant provision, where under the Election Tribunal is conferred power to make host of orders after conclusion of trial of an election Petition, section 67 (1) of the RoPA, 1976, which reads as under: - “67. Decision of the Tribunal. (1) The Tribunal may, upon the conclusion of the trial of an election petition, make an order- (a) dismissing the petition; (b) declaring the election of the returned candidate to be void; (c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected; or (d) declaring the election as a whole to be void. 25. Power of the Election Tribunal, to order re-poll in some of the Polling station, is not some thing that has come up for the first time, controversy came up in the case of Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others (AIR 1978 SC 851). Indian Supreme Court, while examined various provisions including section 98 and 100 of the (Indian) Representation of Peoples Act, 1951, (which provisions are analogous to Section 67 and section 68 respectively of RoPA), at page 391, came to a conclusion that the Election (High) Court (Election Tribunal herein) has power to make all sort of order including partial poll in furtherance to achieve free and fair election. Civil Appeals No.1169 & 1192 of 2014 15 26. Recently in the case cited as Raja Aamer Zaman v. Omar Ayub Khan (2015 SCMR 890), this Court had the opportunity to examine the non observance or breach of duty on the part of the Returning Officer and other polling staff entrusted to conduct election in free, fair and transparent manner in accordance with RoPA and Rules framed there under. In a situation where it is found that that the result of election is dependent on count of vote at the challenged polling station, than the Election Tribunal is within its jurisdiction not to declare the election as a whole void in terms of clause (d) of section 67 read with section 70 of the RoPA, but to declare the election of the returned candidate to be void to the extent of few challenged polling Station in terms of clause (b) of Section 67 ibid. It is under such circumstances not necessary to declare the election as a whole to be void per section 67 (d) of the RoPA; It was further held that the Election Tribunal, however was not denuded of the jurisdiction to grant partial relief of declaring the election at a few polling stations to be void and, directing re-poll there at. The question, as to which of the two available courses is to be followed would depend on the facts and circumstances of each case. 27. It may be observed that the Election Tribunal are constituted as mandated under Article 225 of the Constitution, of Pakistan, 1973 under section 57 of the RoPA to adjudicate all and each nature of election dispute. Election Tribunals in terms of section 64 ibid is deemed to be a Civil Court, has absolute jurisdictions to decide all question or dispute pertaining to election to either of the House or Provincial Assembly and is bestowed comprehensive power as is enjoyed by the Civil Court trying a suit under Code of Civil Procedure 1908. it is absolutely permissible for the ‘Election Tribunal’ to grant all or any of the reliefs wholly or partly as set out in section 67 of the RoPA and to direct the Election Commission to take such ancillary and incidental steps as may be necessary to ensure honest, just, and fair election in accordance with law and further to ensure corrupt practice are guarded against. Where a Court or Tribunal Civil Appeals No.1169 & 1192 of 2014 16 is conferred jurisdiction and power to grant large relief also has jurisdiction to grant smaller relief under the law. The Election Tribunal like a Court in consideration of ground realities, circumstances of each case may suitably mould the relief as may be appropriate, just, proper and fair. 28. Examining the case in hand as act of omission and commission of election staff was successfully established in respect of 33 polling stations of the subject constituency, and the vote count of the subject station had material bearing on the eventual out come of the result of the election. In the instant case as could be noted the difference between the appellant and runner up is only 5,885 votes and between the appellant and respondent No.1 Muhammad Nasir Cheema, the Election Petitioner comes to 7,421 votes only. It may be observed as noted by the Election Tribunal in paragraph 22 of the impugned Decision that total number of votes casted in favour of all the contesting candidates as per consolidated statement in form XVI in 33 challenged Polling Station come to 34, 229- whereas only 19,500- polled votes were recovered from the bags of said 33 polling stations, there is staggering difference of 14,929= votes which is more than double the difference between the contestant parties. Thus it could be seen that the total votes cast in the 33 polling stations will in fact determine the fate of Contesting candidate in accordance with the will of the people. It was established on record that only the result of 33 polling stations was stained and soiled by non performance of statutory duties by the Returning and Presiding Officers as noted in detail above. There is no challenge as to majority of the polling stations. It may be observed that where the result of few challenged polling station does not materially affect the over all result of the election than no order of invalidating the election either as a whole or in part would be justified or warranted. However, where the ultimate result of the election is dependent on the out come of the ballot count of even one or few polling station, than order “declaring the election of the returned candidate to be void” in terms of clause (b) of section 67 read Civil Appeals No.1169 & 1192 of 2014 17 with Section 70(a) ibid; may be justified and ordering partial poll to the extent of such challenged polling station only would be necessitated, instead of “declaring the election as a whole to be void” per clause (d) of section 67 ibid. In instant case learned election Tribunal, was justified to declare the election of the Returned Candidate void, for the simple reasons, if the vote count of challenged polling station are excluded, over all result would not be reflective of the true will of electors of the constituency. 29. After examination of the evidence that has come on record, learned Election Tribunal rightly concluded that “the credibility, legality and transparency of the election of returned candidate from 33 polling stations of the Constituency” was successfully demolished by the Election Petitioner. Consequently, the conclusion drawn by the Election Tribunal that “the result of election favorable to the retuned candidate falls to the ground mathematically and automatically”. Therefore impugned decision of the learned Election Tribunal declaring “election of the returned candidate to be void” calls for no interference, resultantly C.A No. 1192/14 being devoid of merits is dismissed. 30. Now adverting to merits of C.A 1169/2014 filed by the Election Petitioner, seeking his declaration as duly elected in place of returned candidate, since de-seated. It is not necessary that whenever the election of a returned candidate is declare “wholly void”, the Election Petitioner, as a matter of right could be declared elected. No doubt Section 67 (1)(c) read with section 69 of RoPA, do empower the learned Election Tribunal to declare the election Petitioner or any of the contesting candidate to be declared as elected in event, the election of the returned candidate is annulled, that the Election Petitioner and or any of the Respondent has so prayed and secondly in cases where the Election “Tribunal is satisfied” that the election Petitioner or such other contesting candidate was “entitled” to be declared elected. Thus it is clear that swapping Civil Appeals No.1169 & 1192 of 2014 18 of Election Petitioner and or any other contesting candidate is neither automatic nor a natural corollary to the invalidation of election of returned candidate, but is subject to two qualifying conditionalities as noted herein. What constitute “Tribunal is satisfied” and when the election Petitioner or other contesting candidate becomes “entitled” to be declared elected are neither elucidated nor any parameters are provided either under the RoPA or rules framed thereunder as against the contemporary provisions of section 101 of the (Indian) Representation of Peoples Act, 1951. However, satisfaction of the Election Tribunal to exercise power under Section 67 (1)(c) read with section 69 of the RoPA, 1976, is to be based on rational criteria, guided by good conscience. One of the rational consideration may be where on the basis of recount of total votes and or on re-examination of valid and invalid vote count in ultimate analysis the Election Petitioner and or any other contesting candidate who so ever had secured highest number of total valid vote counts as against the returned candidate or there may be a situation, where votes of certain polling station for any reason have not been correctly added up in the total vote count, in such like situation the outcome, is clear leaving no doubt and ambiguity in determining who has emerged successful. The Election Tribunal could declare the candidate; whosoever may it be the Election Petitioner or any other contesting candidate, having secured highest number of vote as duly elected. It is not so in the instant case. As noted in detail in preceding paragraphs more particularly in paragraph 13 and 28 above that the returned candidate was shown to have secured 7,421 vote more than the Election Petitioner, and he his lead was even narrow i.e merely 5, 885 votes as against the runner- up/respondent No.25. It may be observed that the election of the returned candidate was not declared “whole to be void” in terms of section 67(1)(d), ibid rather on account of discrepancy or missing valid votes count of actual vote casted in 33 challenged polling station, that persuaded the learned Election Tribunal to declare the election of the returned candidate as void within the contemplation of section 67(1)(b ) of the RoPA, Civil Appeals No.1169 & 1192 of 2014 19 1976. Since contesting parties before the learned Election Tribunal were the Election Petitioner and the returned candidate, even the runner-up chose to remain away from the dispute. Total number of vote casted in all 33-challenged polling station, as per consolidated statement of votes count in form XVI comes to 34,229, whereas, only 19,500- polled votes were recovered from the bags of all such polling stations. There is no explanation as to where 14,929- votes disappeared. Since difference of votes count between the returned candidate since unseated, the runner up/respondent No.25 and the Election Petitioner is much less than the missing number of votes. Under the given facts and circumstances none of the parties to dispute could claim nor it could be determined as to which of the contesting candidate command the confidence of the majority of the electorate in the subject constituency. Election Petitioner, was not able to make out any case whereby he could become “entitled to be declared elected” within the contemplation of section 69 of the RoPA, 1976. 31. As observed above, the creditability, legality, and transparency of the election in 33 challenged polling stations were successfully demolished. It is the votes that may be polled in said 33 polling stations would be decisive as to which of the contesting candidates commands the confidence of majority of the electorate, and unless they are given free and fair opportunity to the electorate of subject polling stations to express their free will, it cannot be concluded that the Election Petitioner had secured the winning number of votes, even if total vote casted in said constituency are counted towards the Returned Candidate. Such being the position, the Election Petition filed by the Election Petitioner was rightly dismissed. In this view of the matter, we do not find any merit in C.A No.1169/2014 filed by the Election Petitioner, is accordingly dismissed. 32. In view of the discussion made above, we do not find any factual and or legal infirmity in the impugned decision. Civil Appeals No.1169 & 1192 of 2014 20 Both the listed Appeals, being without merits are accordingly dismissed. Judge Judge Judge ISLAMABAD, THE 11th May, 2015 Arshad/* NOT APPROVED FOR REPORTING

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE UMAR ATA BANDIAL CIVIL APPEALS NO. 1171 TO 1192 OF 2013. (On appeal from the judgment dated 26.8.2013 of the KPK Subordinate Service Tribunal, Peshawar passed in Service Appeals No. 2/2009, 1, 4, 5, 7, 8, 6, 9, 10, 11, 13, 15, 16 of 2010, 2 of 2009, 1, 17, 18, 19, 20, 21, 22, 27 of 2010). Registrar, Peshawar High Court …in C.A.1171/2013 Registrar, Peshawar High Court …in C.A.1172/2013 Muhammad Arif-II and others …in C.A.1173/2013 Syed Zamurd Shah and others …in C.A.1174/2013 Mrs. Sofia Waqar Khattak …in C.A.1175/2013 Muhammad Zafar and others …in C.A.1176/2013 Shoaib Khan and others …in C.A.1177/2013 Muhammad Rauf Khan and others …in C.A.1178/2013 Aurangzeb Khattak and others …in C.A.1179/2013 Muhammad Aamir Nazir and others …in C.A.1180/2013 Ihsan Ullah Mahsud and others …in C.A.1181/2013 Ashfaque Taj and others …in C.A.1182/2013 Jehanzeb Shinwari and others …in C.A.1183/2013 Qamar Sohail Lodhi …in C.A.1184/2013 Azhar Khan …in C.A.1185/2013 Muhammad Asif-II and others …in C.A.1186/2013 Syed Zamurd Shah and others …in C.A.1187/2013 Mrs. Sofia Waqar Khattak and others …in C.A.1188/2013 Muhammad Rauf Khan and others …in C.A.1189/2013 Aurangzeb Khattak and others …in C.A.1190/2013 Shoaib Khan and others …in C.A.1191/2013 Muhammad Aamir Nazir and others …in C.A.1192/2013 …Appellant(s) VERSUS Shafiq Ahmad Tanoli and others …in C.A.1171/2013 Sardar Muhammad Irshad and others …in C.A.1172/2013 Muhammad Amin Kundi and others …in C.A.1173/2013 Rajab Ali Khan and others …in C.A.1174/2013 Muhammad Hussain and others …in C.A.1175/2013 Liaquat Ali Khan Marwat and other …in C.A.1176/2013 Nasrullah Khan Gundapur and others …in C.A.1177/2013 Madad Khan and others …in C.A.1178/2013 Salahuddin and others …in C.A.1179/2013 Rafiullah Khan and others …in C.A.1180/2013 Jamal-ud-Din and others …in C.A.1181/2013 Civil Appeals No. 1171 to 1192/2013. 2 Muhammad Iqbal Khan and others …in C.A.1182/2013 Muhammad Zubair and others …in C.A.1183/2013 Shafiq Ahmed Tanoli and others …in C.A.1184/2013 Sardar Muhammad Irshad and others …in C.A.1185/2013 Muzzamil Shah Khattak and others …in C.A.1186/2013 Ikhtiar Khan and others …in C.A.1187/2013 Ahmed Sultan Tareen and others …in C.A.1188/2013 Naveed Ahmed Khan and others …in C.A.1189/2013 Gohar Rehman and others …in C.A.1190/2013 Sajjad Ahmad and others …in C.A.1191/2013 Mehmood-ul-Hassan and others …in C.A.1192/2013 …Respondent(s) For the appellant(s): Qazi Muhammad Anwar, Sr. ASC Syed Rifaqat Hussain Shah, AOR (in C.As.1171 to 1176, 1181 to 1188/2013) Mr. Farooq H. Naek, Sr. ASC Syed Rifaqat Hussain Shah, AOR (in C.As.1178 & 1189/2013) Mr. Muhammad Munir Paracha, ASC Syed Rifaqat Hussain Shah, AOR (in C.As.1174 & 1186/2013) Mr. Mushtaq Ali Tahir Kheli, ASC Ch. Akhtar Ali, AOR (in C.As.1179, 1180, 1190 & 1192/2013) Mr. Tariq Aziz, ASC/AOR (in C.A.1191/2014) For the respondent(s): Mr. Muhammad Akram Sheikh, Sr. ASC Syed Safdar Hussain, AOR (in C.As.1173, 1174, 1177, 1179, 1180, 1182, 1183, 1186, 1187, 1189 to 1192/2013) Mr. Anwar Kamal, Sr. ASC Mr. M. S. Khattak, AOR (in C.As.1176 & 1188/2013) Mir Adam Khan, AOR (in C.A.1181/2013) For Peshawar High Court: Imran Ullah, Legal Draftsperson, P.H.C. Muhammad Saeed, Assistant Director, KPK Public Service Commission Date of hearing: 24.02.2015 (Judgment Reserved) … J U D G M E N T EJAZ AFZAL KHAN, J.- These appeals with leave of the Court have arisen out of the judgment dated 26.8.2013 of the KPK Subordinate Judiciary Service Tribunal Peshawar, whereby it partially Civil Appeals No. 1171 to 1192/2013. 3 allowed the appeals filed by the respondents. The points raised and noted at the time of grant of leave read as under:- “2. It is, inter alia, contended by the learned counsel for the petitioners that the learned Tribunal has failed to appreciate the Order dated 13.8.2009 passed by the Hon’ble Chief Justice of Peshawar High Court was not appealable, hence the learned Tribunal had no jurisdiction to entertain the appeals in question. It is further contended that the prescribed procedure was not complied with nor questions of law were formulated by the learned Tribunal. It is added that the learned Tribunal has failed to take into consideration its own order dated 18.12.2012, as a consequence whereof, the impugned judgment is invalid and liable to be set aside. The learned counsel further urged that the learned Tribunal has misapplied and misinterpreted Rule 10 of KPK Judicial Service Rules, 2001. Furthermore, by way of the impugned judgment, the learned Tribunal has presumed authority and jurisdiction of the Administrative Committee, which is not vested therein by law. 3. The contentions raised by the learned counsel require consideration, therefore, these petitions are accepted and leave to appeal is granted, inter alia, to consider the aforesaid contentions.” 2. Learned ASC appearing on behalf of the appellants contended that the appointing authority, according to section 5 of the Civil Servants Act, 1973 is the Governor or a person authorized by the Governor in this behalf; that the Governor, conferred this power on the Chief Justice vide Notification No. SOR-IV(E&AD)/3-11/2001 dated 28.8.2001 and that the Chief Justice being the appointing authority shall cause a seniority list of the members of such service, cadre or post, to be prepared, under section 8 of the Act. He next contended that though according to Rule 4 and 10 of the KPK Judicial Service Rules, 2001, the appointing authority and the authority determining seniority is the High Court but this being in conflict with the parent statute cannot override the latter. In case, the learned ASC maintained, the Civil Appeals No. 1171 to 1192/2013. 4 Rules are allowed to override the parent statute, no departmental authority would be left for appeal, or representation. 3. Learned ASC appearing on behalf of the respondents contended that the appointing authority to a post, according to rule 4 of the Rules, is the High Court and not the Chief Justice; that such authority being executive and administrative is exercised by the Administration Committee in view of Rule 1 Part A of Chapter 10 of the High Court Rules and Orders Volume V, therefore, the impugned judgment projecting such interpretation cannot be caviled at. 4. We have gone through the record carefully and considered the submissions of the learned ASCs for the parties. 5. Before we appreciate the controversy canvassed before us, it would be imperative to refer to the relevant provisions of the Civil Servants Act and the Rules made thereunder. The relevant provision of the Act read as under:- “5. Appointment: Appointment to a civil service of the Province or to a civil post in connection with the affairs of the Province shall be made in the prescribed manner by the Governor or by a person authorized by the Governor in that behalf. 8. Seniority:- (1) For proper administration of a service, cadre or {post}, the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or {post} to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or {post} as the case may be. (2) Subject to the provisions of sub-section (1), the seniority of a civil servant shall be reckoned in relation to other civil servants belonging to the same service or [cadre] whether serving the same department or office or not, as may be prescribed. (3) Seniority on initial appointment to a service, [cadre] or post shall be determined as may be prescribed. (4) Seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to that post; Civil Appeals No. 1171 to 1192/2013. 5 Provided that civil servants who are selected for promotion to a higher post in one batch shall, on their promotion to higher post, retain their inter-se seniority as in the lower post. (5) The seniority lists prepared under sub-section (1), shall be revised and notified in the official Gazette at least once in a calendar year, preferably in the month of January.” 6. The Rules relevant in this behalf read as under:- “2. Definitions: In these rules, unless there is anything repugnant in the subject or context: (a) “Administration Committee of the High Court” means Committee constituted under High Court Rules and Orders, volume-V, Chapter 10-A. (b) “Appointment on contract basis” means appointment made for a specified period in accordance with the policy of Govt: applicable to appointment on contract basis. (c) “Chief Justice” means the Chief Justice of Peshawar High Court Peshawar. (d) “Commission” means the North West Frontier Province Public Service Commission. (e) “Departmental promotion committee” means the Committee constituted under High Court Rules and Orders Volume-V, chapter 10-A. (f) “Government” means the Government of North West Frontier Province. (g) “High Court” means Peshawar High Court Peshawar. (h) “Initial appointment” means appointment made otherwise than by promotion or transfer from another service, department or post; (i) “Provincial Judicial Selection Board” means a Board comprising the Administration committee or such number of Judges of the High Court as may be nominated by the Administration Committee; (j) “Recognized University” means the University established by or under a law in Pakistan or any other University which may be declared by Government to be a recognized University for the purpose of these rules; (k) “Selection Authority” means the Commission or, as the case may be, the Provincial Judicial Section Board; and (l) “Service” means the North West Frontier Province Judicial Service. 4. Appointing Authority:-Appointment to a post shall be made by the High Court. 10. Seniority: The seniority inter-se of the members of the service in the various pay scales thereof shall be determined by the High Court, subject to the following conditions: (a) In the case of members appointed by initial recruitment, in accordance with the order of merit assigned by the Selection Authority as mentioned in Rule-5; provided that persons selected for the service in an earlier selection shall rank senior to the persons selected in a later selection. (b) In the case of members appointed by promotion, seniority in a post, service or cadre to which a Civil Servant promoted shall take effect from the date of regular appointment to that post; provided that Civil Servants who are selected for promotion to a Civil Appeals No. 1171 to 1192/2013. 6 higher post in one batch shall, on their promotion to higher post, retain their inter-se seniority as in the lower post. Explanation-I If a Jr. officer in a lower grade is promoted temporarily to a higher grade in the public interest, even though continuing later permanently in the higher grade, it would not adversely affect the seniority in the interest of his/her senior officer in the fixation of his/her seniority in the higher grade. Explanation-II If a Jr. officer in a lower grade is promoted to a higher grade by superseding a Sr. officer and subsequently that officer is also promoted, the officer promoted first shall rank senior to the officer promoted subsequently. 13. General Rules: In all matters not expressly provided for in these rules, members of the Service shall be governed by such rules as have been or may hereafter be prescribed by Government and made applicable to their employees, with such modifications and changes as the High Court may prescribe.” 7. According to section 5 of the Civil Servants Act and Rule 4 of the KPK (Appointment, Promotion and Transfer) Rules, 1989, the appointing authority to a civil post in connection with the affairs of the Province is the Governor or a person authorized by him. In 2001, the Governor by amending Rule 4 of the KPK (Appointment and Promotion) Rules, 1989 vide Notification No. SOR-IV(E&D)/3-11/2001 authorised the Chief Justice, Peshawar High Court, to appoint Judicial Officers Sub-ordinate to the High Court with immediate effect. But this notification being a stopgap arrangement remained in force only till the enforcement of the KPK Judicial Service Rules, 2001. The Rules, so enacted and enforced deal with qualification, eligibility, method of recruitment, appointment, seniority and matters ancillary thereto. According to Rule 4 and 10 of the said Rules, the appointing authority for a civil post and the authority determining the inter se seniority of the members of the service shall be the High Court and not the Chief Justice. The expressions ‘High Court’ and Chief Justice’ being distinct from each other are not interchangeable from any angle of vision. The appointing authority and the authority determining seniority for the Civil Appeals No. 1171 to 1192/2013. 7 purposes of sections 5 & 8 of the Act is therefore the High Court and not the Chief Justice. 8. What does the expression “High Court” mean in the scheme of the relevant rule, enactments and Constitutions? Rule 2(g) of the Rules, 2001, defines the expression ‘High Court’ as Peshawar High Court Peshawar. However, according to the East India (High Court of Judicature) Act, 1861, the Government of India Act, 1915, the Government of India Act, 1935, the Constitution of Islamic Republic of Pakistan 1956, the Constitution of 1962 and the Constitution of 1973, the expression “High Court” means High Court consisting of Chief Justice and Judges. If we go by this definition then the appointing authority shall not be the Chief Justice but the High Court consisting of Chief Justice and other Judges. 9. What has been regulating the executive and administrative work of the High Court ever since its establishment? Such work of the High Court, if we see in the historical perspective, has been regulated by the Acts which have been enforced from time to time and Rules and Orders made and issued thereunder. The first Act enforced in this behalf was the Punjab Courts Act, 1884. The High Court under the said Act was called the Chief Court. The relevant section of the Act reads as under :- “8 (1) Except as by this Act or by any other enactment for the time being in force otherwise provided, the Chief Court may make rules to provide, in such manner as it thinks fit for the exercise by one or more of its Judges of any of its powers. ii)……….. (iii)……….” The relevant rule framed thereunder provides as follows:- Civil Appeals No. 1171 to 1192/2013. 8 “I. The powers of the Courts, as a Court of control, shall be exercisable by all the Judges, and shall be allotted in such manner as the Judges in monthly meeting may from time to time determine. II. (i) A meeting of the Judges shall be held monthly on such day as the Chief Judge may from time to time fix in that behalf, for the disposal of references relating to the Judicial administration or matters affecting the working of the Court, and all such business, not of a judicial character, as a Judge may refer to the meeting. (ii) The meeting shall ordinarily be held on the first Friday (not being a holiday) of every month. III. The Registrar shall convene the monthly meetings and regulate the business to be considered thereat, in such manner as the Chief Judge may from time to time direct.” 10. In 1914 Punjab Courts Act (III) of 1914 was promulgated. It also provided for exercise of any of the powers of the said Court by one or more of its Judges. The relevant section in this behalf merits a reference which reads as under:- “SECTION 8 OF PUNJAB COURT ACT, 1914. 8 (1). Except as by this Act or by any other enactment for the time being in force otherwise provided, the Chief Court may make rules to provide, in such manner as it thinks fit for the exercise by one or more of its Judges of any of its powers. (2) The Chief Court may make rules, declaring what number of Judges, not being less than three, shall constitute a Full Bench of the Court, and may by these rules prescribe mode of determining which Judges shall sit as a Full Bench, when a Full Bench sitting becomes necessary. (3) Subject to the provisions of sub-section (2), the Senior Judge may determine which Judge in each case shall sit alone, and which Judges of the Court shall constitute any Bench” 11. Rules framed pursuant to the said provision of the Act read as follows:- “Part A---RULES FOR THE DISPOSAL OF EXECUTIVE AND ADMINISTRATIVE BUSINESS 1. Administrative Business.--- The Administrative and executive work of the High Court shall be controlled by a Committee of Judges to be known as the Administration Committee. Provided that the work of the Benches at Karachi and Peshawar shall be conducted in such manner as the Chief Justice may direct. Provided further that those matters which are the executive concern of the Chief Justice, namely, the constitution of Benches and the Civil Appeals No. 1171 to 1192/2013. 9 appointment and control of the High Court Establishment, shall be dealt with in accordance with such instructions as may from time to time be issued by the Chief Justice.] 2. Constitution and appointment of Administration Committee.----The Administration Committee shall consist of seven Judges. The Chief Justice and the Senior Puisne Judge shall be ex- officio members and the Chief Justice shall annually nominate the other five members of the Committee.] 3. Quorum of Administration Committee.--- At all meetings of the Administration Committee, three Judges shall form a quorum. 4. (a) Each member of the Administration Committee shall act as an Administration Jude and the powers and duties of each Administration Judge shall be defined by the Chief Justice from time to time. (b) The following matters shall invariably be referred by an Administration Judge to the Administration Committee:- (i) All cases which are to go before a meeting of all the Judges. (ii) All cases involving the amendment of the Rules and Orders of the Court other than purely routine amendments. (iii) The issue of circular letters and instructions to the Subordinate Courts in other than purely routine matters. (iv) All circulars issued by District and Sessions Judges and District Magistrates for the guidance of Courts subordinate to them. (v) All proposals for the confirmation or promotion of District and Sessions Judges and Subordinate Judges. (vi) The grant of permission to Subordinate Judges to cross efficiency bars. (vii) All pension cases of District and Sessions Judges and Subordinate Judges. (viii) All cases in which disciplinary action is to be taken against District and Sessions Judges and Subordinate Judges, and all cases in which there is a question of the recovery from an officer of any loss suffered by Government. (ix) The selection of officers for deputation, and magisterial commercial or special training. (x) Recommendation for the direct appointment of Government servants as Extra Assistant Commissioners. (xi) The fitness of officers for appointment as District and Sessions Judges. (xii) The monthly returns of work done by District and Sessions Judges. (xiii) All cases in which lawyers seek relaxation of the High Court Rules applicable to them, other than those in Civil Appeals No. 1171 to 1192/2013. 10 which the Judges or the Administration Committee have laid down a policy to be followed. (xiv) All proposals for the execution of Civil Major works in the Judicial Department. (xv) All cases in which the opinion of all the Judges is sought by Government. [(xvi) Recording of annual confidential report on the work and conduct of a Civil Judge or Magistrate where:- (a) it is intended to comment unfavourably on his conduct and work; or (b) another reporting authority has recorded adverse remarks. (xvii) All cases of conferment of civil and criminal powers on Subordinate Judges and Magistrates except:- (a) Powers under the Provincial Small Cause Courts Act. (b) Powers under the Guardians and Wards Act. (c) Permission to exercise powers under the Provincial Insolvency Act already conferred by Punjab Government Notification No. 780, dated the 15th July 1914. (d) First class powers on stipendiary magistrates after the exercise of second class powers for six months. (xviii) All cases not specifically provided for which, in the opinion of the Administration Judge, involve questions of principle of policy. (c) All administrative work for which there is no explicit provision in the Rules and Orders of the Court or in the rules made by the Administration Committee, shall be disposed of under the orders of the Administration Judge who may refer to the Committee any matter on which he could pass orders. (d) The Administration Judge shall pass orders on the postings and transfers of judicial officers serving under the High Court, and after orders have issued they shall be circulated to all members of the Administration Committee.” 12. In 1918 the Punjab Courts Act was re-enacted while that of 1914 was repealed. Section 3 of this Act is relevant which reads as under:- “3. (1) Enactment of provisions relating to Courts in the Punjab- (a) the provision contained in Part-II of this Act are hereby enacted, and shall be deemed to have had effect on and from the first day of August, 1914. (b) The Punjab Courts Act, 1914, and Punjab Act IV of 1914, or so much of them as may be valid are repealed on and from the first day of August, 1914. (2) Validation of acts done—All things done under the Punjab Courts Act, 1914, as amended by Punjab Civil Appeals No. 1171 to 1192/2013. 11 Act, IV of 1914, shall be deemed to be in every way as valid as if the Punjab Courts Act, 1914, as amended by Punjab Act IV of 1914, had been of full force and effect on and from the first day of August, 1914: Provided firstly, that any appeal which may have been decided by the Chief Court in the exercise of jurisdiction purporting to be exercised under Section 39(1)(b) of the Punjab Courts Act, 1914, shall be deemed to have been validly decided, and shall not be called in question by reason of anything contained in this Act; And, secondly that any appeal which before the commencement of this Act has been presented to the Chief Court under Section 39(1)(b) of the Punjab Courts Act, 1914, and which should not have been so presented if the said sub-section had run as set out in Section 39 of Part II of this Act shall if it has not been decided be transferred by the said Court for disposal to the District Court having jurisdiction; And thirdly, that any appeal which would have laid to the Chief Court under section 39(1)(b) of the Punjab Courts Act, 1914 but which lies to the District Court under the provisions of this Act and when if presented to the Chief Court at the commencement of this Act would be within time, shall be deemed to be presented within time if presented to the District Court within sixty days from the commencement of this Act.” Another relevant provision is section 8 of the Act which reads as under:- “SECTION 8 OF PUNJAB COURT ACT, 1918. 8 (1). Except as by this Act or by any other enactment for the time being in force otherwise provided, the Chief Court may make rules to provide, in such manner as it thinks fit for the exercise by one or more of its Judges of any of its powers. (2) The Chief Court may make rules, declaring what number of Judges, not being less than three, shall constitute a Full Bench of the Court, and may by these rules prescribe mode of determining which Judges shall sit as a Full Bench, when a Full Bench sitting becomes necessary. (3) Subject to the provisions of sub-section (2), the Senior Judge may determine which Judge in each case shall sit alone, and which Judges of the Court shall constitute any Bench” 13. In 1955, the High Court of West Pakistan (Establishment) Order GGO XIX of 1955 was promulgated. High Court, Lahore, the Chief Court of Sind, the Judicial Commissioners Court of NWFP and Balochistan and any other Court functioning as High Court in relation Civil Appeals No. 1171 to 1192/2013. 12 to the territories ceased to exist and all said powers were conferred on the West Pakistan High Court. The relevant provision reads as under:- “Article 3. Establishment of the High Court of West Pakistan. (I) As from the commencement of this Order there shall be established a High Court of Judicature for the Province of West Pakistan, to be called the High Court of West Pakistan (hereinafter referred to as the High Court), and the Lahore High Court, Lahore, the Chief Court of Sind, the Judicial Commissioner’s Court in the North-West Frontier Province and Balochistan, and any other Court functioning as High Court in relation to the territories or are as now included in the Province of West Pakistan shall cases to exist. (2) The High Court shall have such original, appellate and other jurisdiction and such powers and authority in respect of the territories included in the Province of West Pakistan as the Lahore High Court Lahore, had immediately before the commencement of this Order in respect of the territories in relation to which it exercised appellate jurisdiction. (3) The High Court and the Judges and Divisional Courts thereof shall sit at Lahore, but the High Court shall have Benches at Karachi and Peshawar and Circuit; Courts at other places within the Province of West Pakistan, consisting of such of the Judges as may from time to time be nominated by the Chief Justice.” 14. In 1956 through Correction Slip No. 120/II.D.4 dated 2nd January, 1956, the following rule was inserted:- “CHAPTER 10 Miscellaneous PART A—RULES FOR THE DISPOSAL OF EXECUTIVE AND ADMINISTRTIVE BUSINESS [1. The administrative and executive work of the High Court shall be controlled by a Committee of Judges to be known as the Administration Committee: Provided that those matters which are the exclusive concern of the Chief Justice, namely, the constitution of Benches and the appointment and control of the High Court Establishment shall be dealt with in accordance with such instruction as may from time to time be issued by the Chief Justice. 2. Constitution and appointment of administration Committee.—The Administration Committee shall consist of seven Judges. The Chief Justice and the Senior Puisne Judge shall be ex-officio members and the Chief Justice shall annually nominate the other five members of the Committee]. Civil Appeals No. 1171 to 1192/2013. 13 3. Quorum of Administration Committee.—At all meetings of the Administration Committee, three Judges shall form a quorum. 4. (a) Each member of the Administration Committee shall act an Administration Judge and the powers and duties of each Administration Judge to the Administration Committee:-- (b) The following matters shall invariably be referred by an Administration Judge to the Administration committee:- - i) All cases which are to go before a meeting of the Judge. ii) All cases involving the amendment of the Rules and Orders of the Court other than purely routine amendments. iii) The issue of circular letters and instructions to the Subordinate Courts in other than purely routine matters. iv) All circulars issued by District and Sessions Judge and District Magistrates for the guidance of courts subordinate to them. v) All proposals for the confirmation or promotion of District and Sessions Judge and [Civil Judges]. vi) The case of move-over and grant of selection grade of Judicial Officers]. vii) All pension cases of District and Sessions Judges and [Civil Judges]. viii) All cases in which disciplinary action is to be taken against District and Sessions Judges and Subordinate Judges, and all cases in which there is a question of the recovery from an officer of any loss suffered by government. ix) The selection of officers for deputation, and magisterial commercial or special training. …………………………………………………….” 15. Another rule was inserted through Correction Slip No. 141/IV.Z.8, dated 30th May, 1958 which reads as under :- “16. (i) [Notwithstanding anything contained in the Chapter, the administrative and executive work of High Court shall be controlled by three Committees of Judges to be known as the Administration Committees functioning at Lahore, Karachi and Peshawar. ii) These Committees shall be Advisory Committees and final decision in all administrative matters shall rest with the Chief Justice, except matters which are the statutory responsibility of the High Court as a whole. iii) The Administration Committee at Karachi shall consist of four Judges. The Senior Judge shall be ex officio member and the other three members shall be nominated annually by the Senior Judge from the remaining Judges of that Bench. iv) At all meetings of the Administration Committee, three Judges shall form a quorum. v) Each member of the Administration Committee shall act an Administration Judge and the powers and duties of each Administration judge shall be defined by the Senior Judge of the Bench from time to time. Civil Appeals No. 1171 to 1192/2013. 14 vi) The Administration Committee at Peshawar shall consist of the Senior Judge and Judge/Judges of Peshawar Bench. vii) Each Judge shall act as an Administration Judge and the powers and duties of each Administration Judge shall be defined by the Senior Judge of the Bench from time to time.” 16. The above quoted rule, by affirming that administrative and executive work of the High Court shall be controlled by the Administration Committee, draws a line of distinction between administrative and statutory matters and the nature of decision taken them. In the former case, the decision of the Committee being advisory in nature shall be subject to final decision of the Chief Justice. In the latter case, it being mandatory shall be binding on the Chief Justice. Therefore, it can be said without any fear of contradiction that in statutory matters decision of the Chief Justice cannot override the decision of the Administration Committee. 17. In 1962 West Pakistan Civil Courts Ordinance 1962 was promulgated. All the previous enactments were repealed by the Ordinance. But despite repeal of the enactments mentioned in the schedule, everything done, action taken, obligation, liability, penalty or punishment incurred, inquiry or proceeding commenced, officer appointed or person authorized, jurisdiction or power conferred, rule made and order issued under any of the provisions of the said enactments continued in force if not inconsistent with the provisions of the Ordinance. The relevant provision reads as under:- “28. Repeal and savings. (1)….. (2)………. (3)……… (4)……… (5) Notwithstanding the repeal of the enactment mentioned in the Schedule, everything done, action taken, obligation, liability, penalty or punishment Civil Appeals No. 1171 to 1192/2013. 15 incurred, inquiry or proceeding commenced, Officer appointed or person authorized, jurisdiction or power conferred, rule made and order issued under any of the provisions of the said enactments shall, if not inconsistent with the provisions of this Ordinance, continue in force and, so far as may be deemed to have been respectively done, taken, incurred, commenced, appointed, authorized, conferred, made or issued under this Ordinance.” 18. This set up continued up to 1970 when the High Court (Establishment) Order 1970 was promulgated. By virtue of Article 3 of the Order, three new High Courts were established namely; (a) A High Court for the North-West Frontier Province to be called the Peshawar High Court with the principal seat at Peshawar; (b) a High Court for the Province of the Punjab and the Islamabad Capital Territory to be called the Lahore High Court with its principal seat at Lahore; and (c) a High Court for the Province of Balochistan and Sind to be called the Sind and Balochistan High Court with its principal seat at Karachi. The relevant Article reads as under:- “3. Establishment of High Courts for new Provinces. (1) As from the 1st day of July, 1970, hereinafter referred to as the appointed day, there shall be established the following new High Courts, namely:- (a) A High Court for the North-West Frontier Province to be called the Peshawar High Court within the principal seat at Peshawar (b) a High Court for the Province of the Punjab and the Islamabad Capital Territory to be called the Lahore High Court with its principal seat at Lahore; and (c) a High Court for the Province of Balochistan and Sind to be called the Sind and Balochistan High Court within its principal seat at Karachi, (2) Each new High Court shall be a Court of Record and shall have such original, appellate and other jurisdiction and such powers and authority in respect of the territories for which it is established as the High Court of West Pakistan, immediately before the appointed day, had in respect of the territories in relation to which it exercised appellate jurisdiction. (3) Each new High Court and Judges and Divisional Courts thereof shall sit at its principal seat but may Civil Appeals No. 1171 to 1192/2013. 16 hold Circuit Courts at places within its territorial jurisdiction other than its principal seat consisting of such of the Judges of the High Court as the Chief Justice may from time to time nominate.” 19. The law in force immediately before the appointed day, relating to the powers of the Chief Justice and of Single Judges and Divisional Courts of the High Court of West Pakistan and with respect to all matters ancillary to the exercise of those powers, was made applicable with necessary modifications in relation to each of the new High Courts. The relevant Article providing for application of such law reads as under:- “7. Powers of Chief Justice and other Judges.- The law in force immediately before the appointed day relating to the powers of the Chief Justice and of Single Judges and Divisional Courts of the High Court of West Pakistan, and with respect to all matters ancillary to the exercise of those powers, shall with the necessary modifications, apply in relation to each of the new High Courts.” 20. Disciplinary actions against the District & Sessions Judges and Sub-ordinate Judges ever since 1884 have been taken by the Provincial Government as the Provincial Government was the appointing authority. It continued as such under the Govt. of India Act, 1935, Constitution of 1956, the West Pakistan Government Servants (Discipline and Efficiency) Rules, 1959, the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960 and then under KPK Government Servants (Efficiency and Discipline) Rules, 1973. Administration Committee, under Rule 4(b)(viii) of the High Court Rules and Orders made under section 8 of Punjab Courts Act, 1914 and Rule 4(b)(viii) of High Court Rules and Orders inserted through Correction Slip No.141/IV.Z.8, dated 30th May, 1958 could take action in terms of recommendations against District and Sessions Judges and Sub- Civil Appeals No. 1171 to 1192/2013. 17 ordinate Judges but approval for such action at initial and final stage rested with the appointing authority. 21. On separation of the Judiciary from the Executive pursuant to the mandate of Article 175 of the Constitution, the authority under the Efficiency & Discipline Rules was conferred on the Chief Justice vide Notification No. SORII(S&GAD)5/(29)/86 dated 16th of January 1992. The said notification along with the table reads as under:- “POWER OF CHIEF JUSTICE AS AUTHORITY UNDER NWFP GOVERNMENT SERVANTS (E&D) RULES, 1973. NOTIFICATION PESHAWAR, DATED 16TH JANUARY, 1992. No.SORII(S&GAD)5(29)/86:- In exercise of the powers conferred by clauses (b) and (c) of rule 2 of the North-West Frontier Province (Efficiently and Discipline) Rules, 1973, and in supersession of this department’s Notification No. SOSIII(S&GAD)1-80/73, dated the 28th January, 1975, the Governor of the North- West Frontier Province is pleased to direct that the officers specified in column 3 and 4 of the table below shall respectively be the “Authority” and “Authorized Officer” for the purpose of the said rules in respect of civil servants specified against each in column 2 of the said table.- S.No. Basic Pay Scale of Govt. Servant Authority Authorized Officer 1 2 3 4 1. Officers of former Provincial Civil Secretariat Service and ex-Provincial Civil Service (Executive Branch) in Basic Pay Scale 17. Chief Minister Chief Secretary 2. Officers of former Provincial Civil Service (Judicial Branch) in Basic Pay Scale 17 and above. Chief Justice As Authorized by the authority. 3. Deputy Superintendent of Police in basic Pay Scale 17. Chief Secretary Inspector General of Police. 4. Officers in BPS-17 in the Education Department. Chief Secretary Director of Education concerned. 5. Other Officers in Basic Pay Scale-17 (other than Members of All Pakistan Unified Grades). Chief Secretary Administrative Secretary. 6. Offices in BPS-18 in the Education Department. Chief Minister Administrative Secretary. 7. Other Officers in BPS-18 and above (other than Members of All Pakistan Chief Minister Chief Secretary. Civil Appeals No. 1171 to 1192/2013. 18 Unified Grade). 8. Sectt: Officers in BPS-16. Chief Secretary Secretary S&GAD 9. Government servants in BPS-16 on the Establishment of Peshawar High Court, Peshawar. Chief Justice As authorized by the authority. 10. Government servants in BPS-16 serving on the Establishment of Board of Revenue and the offices subordinate to it. Senior Member Board of Revenue. Secretary BOR. 11. Government servants in BPS-16 serving in the office of Divisional Commissioners and Officers subordinate to them. Commissioner of the Division concerned. As authorized by the authority. 12. Government servants in BPS-16 serving in the Directorate of Local Fund Audit. Secretary Finance Director, Local Fund Audit. 13. Government servants in BPS-5 to 16 serving in the Public Service Commission. Chairman of the Commission. Secretary of the Commission. 14. Other Government servants in BPS-16. Head of Attached Department. As authorized by the authority. 15. Government servants in BPS-5 to 15 serving in the Secretariat. Administrative Secretary concerned. Dy. Secy. (Admn) of the Department concerned. 16. Government servants in BPS-1 to 4 serving in the Secretariat. Dy. Secy. (Admn) of the Department concerned. Section Officer (Admn) of the Department concerned. 17. Government servants in BPS-1 to 14 serving in Public Service Commission. Secretary of the Commission. As authorized by the authority. 18. Other Government Servants in BPS-1 to 15. Appointing authority. As authorized by the authority. 19. Government Servants in BPS-1 to 4 serving in the Chief Minister’s Secretariat. Deputy Secretary-II of C. M’s Sectt: Section Officer (Coord:) Chief Minister’s Sectt: According to this notification, the Chief Justice could exercise all the powers conferred on the Governor of the Province without the approval of the latter at initial or final stage. 22. In a meeting held on 18.12.1976 the Chief Justice and Judges of the Peshawar High Court resolved that administrative and executive work shall be controlled by an Administration Committee of the Judges; that the Administration Committee shall consist of four Civil Appeals No. 1171 to 1192/2013. 19 Judges; that in all matters of the Administration Committee at least two will form a quorum; that if any member of the Administration Committee is not available, the work assigned to him will be disposed of by the Senior Puisne Judge and in case the Senior Puisne Judge is not available, by the Chief Justice and that each member of the Administration Committee shall act as an Administration Judge and the powers and duties of each Administration Judge shall be as follows :- “1. CHIEF JUSTICE. Rosters and cause-lists, Constitution of Benches and the appointment and control of High Court Establishment, except reimbursement of medical charges and G.P. Fund Advance cases. Appointment, transfers, promotions, deputations etc. of the members of subordinate Judiciary. Conferment of powers on Civil Judges and Magistrates. 2. SENIOR PUISNE JUDGE Rules of Procedure in civil and Criminal Courts. Statistics for the purpose of annual notes on the administration of civil and Criminal Justice. All matters relating to lower Court’s establishment. Budget, Accounts and appointment of Oath Commissioners. 3. SECOND JUDGE Library and Law Reports. Matters relating to Legal Practitioners. Record room and Loss of Record. High Court Building, Garden and Compound and other minor works. Petition-Writers, Commissioner and Letter of Request. Stationery and forms of the High Court and Civil Courts. Expenses of witnesses. 4. THIRD JUDGE Reimbursement of medical charges, and G.P. Fund Advance cases of High Court Establishment. Notice under section 80 C.P.C. Insolvency work. Guardian and Wards Work. Official Receiver. Copying Agency. Transfer of Prisoners. 23. According to the decisions taken in the Administration Committee the Rosters and Cause Lists, constitution of Benches and appointment and control of the High Court Establishment (except Civil Appeals No. 1171 to 1192/2013. 20 reimbursement of Medical Charges and G. P. Fund) advance cases, appointments, transfers, promotions and deputations etc of the members of subordinate Judiciary and conferment of powers of Civil Judges and Magistrates lay in the domain of the Chief Justice. Rules of procedure in Civil and Criminal Courts, statistics for the purpose of annual notes on the Administration of Civil and Criminal Justice and all matters relating to lower Court’s establishment, budget, accounts and appointments of Oath Commissioners lay in the domain of Senior Puisne Judge. Library and Law Reports, matters relating to Legal Practitioners, Record Room, loss of record, High Court building, garden, compound and other minor works including petition writers, Commissioner and Letter of Request, stationery and forms of the High Court and Civil Courts including expenses of witnesses lay in the domain of the 2nd Judge. Reimbursement of medical charges and G. P. Fund, advance cases of High Court establishment, notice under section 80 CPC, insolvency work, guardian and wards work, official receiver, copying agency and transfer of prisoners lay in the domain of the 3rd Judge. 24. Now the question arises whether appointment of members of District Judiciary and determination of their seniority is an administrative or statutory responsibility in terms of Rule 16(ii) of the High Court Rules and Orders quoted above? The answer is statutory because it is regulated by section 5 & 8 of the KPK Civil Servants Act and Rule 5 and 10 of the KPK Judicial Service Rules, 2001. When statutory it is to be exercised by the Administration Committee, as explained above. The Chief Justice cannot do anything on his own in the scheme of the Rules of 2001 and High Court Rules and Orders. Civil Appeals No. 1171 to 1192/2013. 21 Therefore, any decision taken by the Administration Committee shall be binding on the Chief Justice. 25. The Rules of 2001 envisaging the High Court as appointing authority and authority determining seniority have not introduced something new or unheard of. They have indeed affirmed what has been provided by the High Court Rules and Orders and practiced ever since the establishment of the High Court. Therefore, Rule 4 and 10 of the Rules cannot be held to be in conflict with the parent statute. As a matter of fact, the Governor by approving the Rules framed under section 26 of the Civil Servants Act abdicated his authority and conferred it on the High Court. Therefore, the argument that the rules are in conflict with the parent statute is misconceived on the face of it. The argument that in case the rules are allowed to override the parent statute no departmental authority would be left for appeal or representation is also misconceived; firstly because the Rules don’t override the parent statute by any means and secondly because a situation highlighted by the learned ASC for the appellant is fully catered for by the 2nd proviso to Rule 3 of the KPK Civil Service Appeal Rules, 1986 which clearly provides that “where the order is made or penalty is imposed by the High Court or the Chief Justice as the case may be, there shall be no appeal but the member of the service may prefer a review petition before the authority passing the order or imposing the penalty”. 26. When considered in this background, we don’t think the view taken by the KPK Sub-ordinate Judiciary Service Tribunal is open to any exception. We, therefore, dismiss these appeals. Civil Appeals No. 1171 to 1192/2013. 22 JUDGE JUDGE JUDGE Announced in open Court at Islamabad on____________ JUDGE Not Approved For Reporting K.Anees/*

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{'id': 'C.A.1171_2013.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN CIVIL APPEALS NO.1171, 1179 TO 1187, 1190 TO 1192, 1198 TO 1236, 1242, 1255, 1274 TO 1276, 1502 TO 1515 OF 2017 AND 114 OF 2013 (Against the judgments dated 3.8.2017 and 30.4.2012 of the High Court on Sindh, Karachi and Peshawar High Court, Peshawar passed in H.C.As.No.83/2015, 263, 268, 271, 264, 266, 274, 276, I.C.A.No.281/2016, H.C.As.No.306, 265, 278, 275, 269, 270, 272, 273, 277, 283, 285, 321, 322, 338, 288/2016, 85, 84/2015 and C.R.No.215/2008) AND CIVIL MISC. APPLICATIONS NO.6517, 6204, 6207, 6936 TO 6940, 8195, 8196, 6723, 6725, 6727, 6729, 6731, 6735, 6747, 6721, 6733, 6737, 6741, 6743, 6745, 8394, 8395, 6739 OF 2017 (Applications for impleadment) M/s Searle IV Solution (Pvt) Ltd. In C.A.1171/2017 M/s Naveena Industries Ltd. In C.A.1179/2017 M/s Artistic Denim Mills (Pvt) Ltd. In C.A.1180/2017 M/s Monnoowal Textile Mills, Ltd. In C.A.1181/2017 M/s Artistic Fabric Mills (Pvt.) Ltd. In C.A.1182/2017 M/s Rizwan enterprises In C.A.1183/2017 M/s Maksons Textile Ltd In C.A.1184/2017 M/s Naveena Industries Ltd In C.A.1185/2017 M/s Sapphire Textile Mills Ltd In C.A.1186/2017 M/s Umair Spinning Mills (PVT) Ltd. In C.A.1187/2017 M/s Kassim Textile Mills (PVT) Ltd. In C.A.1190/2017 M/s Kassim Textile Mills (PVT) Ltd. In C.A.1191/2017 M/s Khas Textile Mills (PVT) Ltd. In C.A.1192/2017 Unilever Pakistan Ltd. In C.A.1198/2017 K- Electric Ltd. In C.A.1199/2017 I.G.I. Insurance Ltd., Karachi In C.A.1200/2017 E.N.I. Pakistan Limited etc. In C.A.1201/2017 Standard Chartered Bank (Pakistan) Ltd. In C.A.1202/2017 National Foods Ltd. In C.A.1203/2017 Schlumberger Seaco Inc. etc. In C.A.1204/2017 Tapal Tea (Pvt.) Ltd. In C.A.1205/2017 Pakistan Petroleum Ltd. & another In C.A.1206/2017 Reckitt Benckiser Pakistan Ltd. In C.A.1207/2017 Vision Holdings Middle East Ltd. & another In C.A.1208/2017 Engro Corporation Ltd. Karachi etc. In C.A.1209/2017 Atlas Honda Ltd. In C.A.1210/2017 Abbott Laboratories (Pakistan) Ltd. In C.A.1211/2017 Engro Foods Ltd. In C.A.1212/2017 J.S. Bank Ltd. & another In C.A.1213/2017 Habib Metro Pakistan (Pvt.) Ltd. etc. In C.A.1214/2017 Liberty Power Tech Ltd. In C.A.1215/2017 Civil Appeal No.1171 of 2017 etc. -: 2 :- I.B.M. Italia S.P.A. Pakistan In C.A.1216/2017 United Energy Pakistan Limited & another In C.A.1217/2017 Sabre Travel Network Pakistan (Pvt) Ltd. In C.A.1218/2017 M/s Zaman Textile Mills, Ltd. In C.A.1219/2017 M/s Al-Karam Towel Industries(Pvt) Ltd. In C.A.1220/2017 M/s Mekotex (Pvt) Ltd. In C.A.1221/2017 M/s Artistic Fabric Mills (Pvt) Ltd. In C.A.1222/2017 M/s Khas Textile Mills (Pvt) Ltd. In C.A.1223/2017 M/s Sapphire Textile Mills Ltd. In C.A.1224/2017 M/s Hantax Karachi In C.A.1225/2017 M/s Umer Spinning Mill Ltd. etc. In C.A.1226/2017 M/s Latif Textile Mills (Pvt) Ltd. & another In C.A.1227/2017 M/s N.P. Cotton Mills Ltd. In C.A.1228/2017 M/s Diamond International Corporation Ltd. In C.A.1229/2017 M/s Kidney Centre Postgraduate Training Institute In C.A.1230/2017 M/s Gul Ahmed Textile Mills Ltd. In C.A.1231/2017 M/s Proctor & Gamble Pakistan (Pvt) Ltd. In C.A.1232/2017 M/s Ismail Industries, Karachi In C.A.1233/2017 M/s Akram Cotton Mills Ltd. In C.A.1234/2017 M/s Sapphire Textile Mills Ltd. In C.A.1235/2017 BGP (Pakistan) International In C.A.1236/2017 Qasim International Container Terminal Pakistan Limited & another In C.A.1242/2017 Amreli Steels Ltd. In C.A.1255/2017 M/s Shazeb Pharmaceutical Industries Ltd. In C.A.1274/2017 M/s A - Z Pharmaceutical Ltd. In C.A.1275/2017 M/s Unisa Pharmaceutical Ltd. In C.A.1276/2017 Al Baraka Bank (Pakistan) Limited etc. In C.A.1502/2017 Independent Media Corporation Pvt. Ltd. In C.A.1503/2017 Lucky Cement Ltd. & another In C.A.1504/2017 M/s Fatima Fertilizer Co. Ltd. In C.A.1505/2017 Pakistan State Oil Company Ltd. In C.A.1506/2017 Byco Petroleum Pakistan Ltd. In C.A.1507/2017 Dawood Hercules Corporation Ltd. In C.A.1508/2017 M/s Ericsson Pakistan Pvt. Ltd. In C.A.1509/2017 M/s A.F. Ferguson & Co etc. In C.A.1510/2017 Shamoon Sultan through Authorized Representative In C.A.1511/2017 M/s Matiari Sugar Mills Ltd. In C.A.1512/2017 M/s Mekotex Pvt. Ltd. etc. In C.A.1513/2017 Team A-Venture Pvt. Ltd. In C.A.1514/2017 Pakistan International bulk Terminal Ltd. In C.A.1515/2017 Collector of Customs Model Customs Collectorate Peshawar etc. In C.A.114/2013 …Appellant(s) VERSUS Federation of Pakistan and others In C.A.1171/2017 Federal Board of Revenue thr. its Chairman etc. In C.As.1179, 1181, 1185, 1187, 1180 to 1192 and 1219 to 1235/2017 The Collector, Model Customs Collectorate Port M. Bin Qasim, Karachi etc. In C.As.1180, 1182 to 1184, 1186, , 1198 to 1218, 1236, 1242, 1255, 1274 to 1276 and 1502 to Civil Appeal No.1171 of 2017 etc. -: 3 :- 1515/2017 M. S. Khyber Spinning Mills Gadoon Ltd. though its Chief Executive and another In C.A.1182/2017 …Respondent(s) For the Appellant(s)/ Applicant(s): In C.A.1171/2017 Mr. Abdul Sattar Pirzada, ASC In C.As.1179 to 1187, 1190, 1192, 1219 to 1235/2017 Mr. Khalid Anwar, Sr. ASC Mr. Rashid Anwar, ASC In C.As.1198 to 1218, 1236, 1242, 1255/2017 and C.M.As.6204, 6207, 6936 to 6940, 8195 & 8196/2017 Mr. Makhdoom Ali Khan, Sr. ASC Mr. M. Kassim Mirjat, AOR In CAs 1274 to 1276/2017 Mr. Zaheer-ul-Hassan Minhas, ASC In C.A.114/2013 Dr. Farhat Zafar, ASC Mr. M. S. Khattak, AOR In C.As.1502 to 1515/2017 Dr. Farough Naseem, ASC Mr. Mehmood A. Sheikh, AOR In C.M.As.6517, 6723, 6725, 6727, 6729, 6731, 6735, 6747, 6721, 6733, 6737, 6741, 6743, 6745, 6735, 6739/2017 Dr. Farough Naseem, ASC Mr. Mehmood A. Sheikh, AOR For the Respondent(s): For Collector of Customs Karachi (in all cases) Mr. Kafil Ahmed Abbasi, ASC For Collector of Customs Port Qasim Karachi (in all cases) Raja Muhammad Iqbal, ASC Raja Abdul Ghafoor, AOR In C.As.1182, 1186, 1187, 1192 & 1220/2017 Mr. Khalid Mehmood Siddiqui, ASC In C.A.1274 to 1276/2017 Ms. Misbah Gulnar Sharif, ASC For FBR Mr. M. Sarfraz Metlo, ASC In C.A.1198/2017 Mr. Salman Akram Raja, ASC Assisted by Mr. M. Asad Lada, Adv. In C.A.1504/2017 Mr. Rehmanullah, ASC In C.A.1192/2017) Dr. Raana Khan, AOR Civil Appeal No.1171 of 2017 etc. -: 4 :- In C.A.114/2013 Mr. Abdul Latif Afridi, ASC Commission IR (Corporate) Multan Mr. Salman Bhatti, ASC Syed Rifaqat Hussain Shah, AOR Date of Hearing: 21.2.2018 JUDGMENT MIAN SAQIB NISAR, CJ.- The questions of law and fact involved in all the civil appeals in the instant matter are similar thus the same are being disposed of through this single judgment. Appellants, being importers of different raw materials, had earlier claimed exemption of sales tax/customs duties under certain SRO(s) issued in terms of the Customs Act 1969 (Customs Act) and the Sales Act, 1990 (Sales Act), or in some cases under certain Schedules in the Sales Tax Act which the relevant authorities/Assessment Officer(s) under the relevant taxing statutes denied them, thereby passing adverse orders to this extent/effect. Amongst other things, in some of these appeals the parties are also in dispute as to the legal provision under which these orders were passed; whether they were passed under Section 32 or Section 80 of the Customs Act. Although Section 9 of the Civil Procedure Code, 1908 (CPC) places a limitation on the pecuniary jurisdiction of the civil courts in terms whereof the cognizance to try a suit of civil nature is expressly or even impliedly barred by the governing law or Statute in the matter concerned, and there being an express bar of this nature in Section 217(2) of the Customs Act, yet the appellants proceeded to approach the Single Bench of the Sindh High Court at Karachi in exercise of its civil jurisdiction for the redressal of their grievance against these adverse orders, despite the fact that other forums for redressal of their grievances (and subsequent appeals) were available with regards to such orders within the mechanism/scheme of the Statute (the Customs Act). In doing so the appellants mainly claimed that they fell under the exemption(s) laid out in a plethora of judgments of this Civil Appeal No.1171 of 2017 etc. -: 5 :- Court whereby inter alia an order tainted with mala fide or one made beyond jurisdiction conferred could be challenged through a civil suit despite there being an express bar to the cognizance of the same by a civil court. These suits were decreed in favor of the respondents by the learned Single Bench of the High Court at Karachi in exercise of its civil jurisdiction, on merits, holding that the same were maintainable on account of falling within the exemptions carved out by the law laid down by this Court on the matter, whereas the Division Bench, without going into the merits, held that the said suits of the appellants were not maintainable and in the same breath held that no suit lay against any order, notification etc. relating to a taxing statute, including the Sales Tax Act, the Income Tax Ordinance 2001, the Federal Excise Act 2005 and the Sindh Sales Tax on Services Act 2011, unless all the grievance redressal remedies provided therein had been exhausted. An ancillary observation made by the learned High Court in the judgment impugned is that the bar of jurisdiction under the taxing statutes including Section 217(2) of the Customs Act is only to the extent of the exercise of the original civil jurisdiction by “civil courts”, which it held, includes the Single Bench of the High Court in its exercise of the same, however, the Division Bench of the High Court can exercise jurisdiction in respect of disputes arising or relatable to special laws of taxation under its reference jurisdiction as conferred by law under Section 217 of the Customs Act, 1969, Section 51 of the Sales Act, Section 227 of the Income tax Ordinance, 2001, and Section 41 of the Federal Excise Act 2005 under lawful instituted proceedings, and also in appropriate cases, under its extra ordinary constitutional jurisdiction under Article 199 of the Constitution. The appellants now include those in appeal against the impugned judgment as well as those affected thereby under the blanket bar of civil suits from orders/notifications etc. of all taxing statutes. Amongst other contentions, Civil Appeal No.1171 of 2017 etc. -: 6 :- the counsels for the appellants in unanimity submit that the Division Bench, through this blanket bar to civil jurisdiction against actions of authorities under all taxing statutes, has gone beyond the scope of the relief sought by considering laws other than the issue under consideration before it, thus in consonance with the principle laid down in H.M. Saya & Co. Karachi Vs. Wazir Ali Industries Ltd. Karachi and another (PLD 1969 SC 65), their applications for permission to file the appeals are allowed. The following questions of law arose which shall be considered in this judgment: I. Whether the appellants fall within the exceptions created by the case law to a bar to jurisdiction of civil courts in light of the ouster clause in Section 217(2) of the Customs Act, read with the limitation to the jurisdiction of civil courts in Section 9 of the CPC? Whether the suits of the appellants in the civil jurisdiction were maintainable? II. Whether the exercise of the original civil jurisdiction by the Single Bench of the Sindh High Court is ultra vires of the Constitution of the Islamic Republic of Pakistan (Constitution) in light of Article 25 thereof? And further, whether the exercise of this civil jurisdiction by the Single Bench of the Sindh High Court will render it a ‘civil court’ for the purposes of the ouster clause in Section 217(2) of the Customs Act? III. Whether the appellants are entitled to the relief sought? The questions of law formulated hereinabove are individually addressed below and for purposes of convenience and comprehension the arguments of the learned counsel of the parties as well as the issues chalked out by them have been incorporated therein: Civil Appeal No.1171 of 2017 etc. -: 7 :- I. Whether the appellants fall within the exceptions created by a plethora of case law to a bar to jurisdiction of civil courts in light of the ouster clause in Section 217(2) of the Customs Act, read with the limitation to the jurisdiction of civil courts in Section 9 of the CPC? Whether the suits of the appellants in the civil jurisdiction were maintainable? 2. Mr. Khalid Anwar Sr. ASC, appearing on behalf of the appellants, at the outset submits that even though, undoubtedly, there is a bar against the civil courts taking cognizance of the issue concerned in light of Section 217(2) of the Customs Act read with Section 9 of the CPC, however, certain exceptions have been carved out against a bar of such nature. The settled law in the judgments reported as Punjab Province v. The Federation of Pakistan (PLD 1956 FC 72), The Burmah Oil Company (Pakistan Trading) Ltd. Chitagong v. The Trustees of the Port of Chitagong (PLD 1962 SC 113), Abdul Rauf and others v. Abdul Hamid Khan and others (PLD 1965 SC 671), Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (PLD 1965 SC 698)¸ Mian Muhammad Latif v. Province of West Pakistan (PLD 1970 SC 180), and particularly in Abbassia Cooperative Bank v. Hakeem Hafiz Muhammad Ghaus and 5 others (PLD 1997 SC 3) is that where the jurisdiction of the Civil court is challenged on the ground of ouster of jurisdiction it must be shown that, (a) the authority or tribunal in the Statute creating such a bar is validly constituted (b) where the order passed or action taken by the authority is not tainted with mala fide; (c) where the order or action taken was such which could be passed or taken under the law which conferred exclusive jurisdiction on the authority or tribunal; or (d) where in passing the order or taking the action, the principles of natural justice were not violated. If one or more of these four conditions are violated an exception is carved out for the Civil Court to assume jurisdiction. According to him, in the present appeals ground (b) and (c) have been attracted, as in passing the adverse order(s) the authority/Assessment Officer acted beyond the jurisdiction conferred Civil Appeal No.1171 of 2017 etc. -: 8 :- upon it and the same was tainted with mala fide since the corruption prevalent in the Customs House/departments leads its officers to discriminate against those not willing to pay over and above what is due under the law. 3. Mr. Makhdoom Ali Khan, Sr. ASC, while concurring with the above submission further relied upon the judgments of this Court in Chalna Fibre Company Limited, Khulna and others v. Abdul Jabbar and others (PLD 1968 SC 381) at page 387(B), Samiullah v. Fazle Malik (PLD 1996 SC 827) at page 830(A), Azra Masood v. Noshaba Moeen (2007 SCMR 914) at page 918(A) and particularly Hamid Hussain v. Government of West Pakistan (1974 SCMR 356) at page 359(B) which fortifies the exceptions created where special laws entail ouster clauses to jurisdiction of civil courts, providing in its concluding paragraph that “It is a well settled principle that even where the jurisdiction of civil (courts is) barred and conferred upon special tribunals, Civil courts being courts of ultimate jurisdiction will have the jurisdiction to examine acts of such forums to see whether their acts are in accordance with law or are illegal and even mala fide”. Furthermore, he stated that the learned Division Bench in impugned judgment with regard to the finding that such an exemption from bar to jurisdiction has only so far been granted in non-tax law related judgments, has failed to take notice of the fact that the judgments of Mian Mohammad Latif v. Province of West Pakistan (supra) and The Province of Punjab v. Federation of Pakistan (supra) are in fact tax cases wherein it was specifically held that where an act of an income tax officer is extraneous to what was mandated under the statute, a suit shall lie despite an ouster clause. Thus, there being no cavil with the interpretation of this ouster clause, the contentions of the learned counsel for the appellants in unanimity dilated upon the illegality of the adverse orders on account of not having being made in consonance with Civil Appeal No.1171 of 2017 etc. -: 9 :- the provisions of the Custom Act and on account of the mala fide of the authorized officials (Collector Customs and Additional Collector Customs, respondents No. 3 and 4 respectively), and thus they claimed that the suits filed by them were maintainable since the appellate forum provided within the Customs Act is only the forum for appeal where the orders made are not tainted with mala fide or illegality. Although these judgments have been referred to in the impugned judgment, learned counsel submitted that this has only been done in passing and without explaining as to why the present cases do not fall under the exceptions carved out in the precedents above which clearly provided that in certain circumstances a suit in the Civil Court is maintainable, notwithstanding the existence of an ouster clause in this regard. On the other hand, Mr. Khalid Anwar took strong exception to the fact that the impugned judgment outrightly does away with the idea of even entertaining the possibility of an exemption to be granted where an ouster clause exists, instead stating that even if an issue of mala fide etc is to be raised, the same should be done after the hierarchy provided in the statute itself is exhausted and even then the learned Division Bench can take cognizance of the same. This approach, he submitted, renders the entire purpose of raising a claim of mala fide in the decisions of the authorized officials, redundant. It is only upon an examination of the merits of the present case that the Court below could have determined whether it fell under any of the exemptions carved out by the judgments of the Supreme Court and the Division Bench of the same court, but not only did the said Court refrain from going into the merits of the case, at the very outset in paragraph 5 of the impugned judgment, the Court had limited the very scope of the case to merely the questions of maintainability of the suits. This in effect, deprived the appellants of the exceptions provided by the precedents cited hereinabove. Another plea raised by the counsel for the appellants was that if the SRO’s and/or Civil Appeal No.1171 of 2017 etc. -: 10 :- Schedules of the Sales tax Act relied on by the appellants were to be interpreted correctly, the appellants would have been found to be entitled to the same. According to the learned counsel, it is perhaps only the inability or rather the lack of willingness of the authority passing the adverse orders denying such exemption, that the benefit of the same was not extended to the appellants. Fortifying this argument, the learned counsel emphasized that it was customary in the past decade or so that such exemptions were extended to the products imported by the appellants. 4. Mr. Farogh Naseem, learned ASC, strenuously argued that in light of the judgments cited above, there can be no two opinions that where an impugned order or notice of a statutory authority is in breach of natural justice, premised upon mala fides or is extraneous to the statute, be it in a tax statute or otherwise, a suit would be maintainable. He emphasized that even under taxing statutes, what is protected by an ouster clause is an action “under the statute”. Obviously then, when an action is beyond the parameters of the statute or is mala fide or without jurisdiction or in breach of natural justice, the action cannot be reckoned to be one “under the statute” and thus cannot be saved under the garb of the ouster clause. He also relied on the judgment of Muhammad Jamil Asghar’s case (supra) although the facts of the same are not similar to the present appeals. Mr. Farogh Naseem, concurred with the above submissions, additionally submitting that the Division Bench also missed the elementary principle that there are two types of mala fide, i.e. mala fide in law and mala fide in fact, and it is the former that the appellants rely on since the act of the authorities in not extending the benefit of an exemption to the appellants, which is clearly provided under the law is an action extraneous to the law and thus a mala fide in law, for which a civil suit should be maintainable and relied on the principle of ‘Boni Judicis est Civil Appeal No.1171 of 2017 etc. -: 11 :- Ampliare Jurisdictionem’ which means that it is the duty of a good Judge to extend his jurisdiction, in which regard he cited River Steam Navigation Co v. The Commissioners for the Port of Chittagong (PLD 1961 Dacca 412). Concluding his arguments he stated that the Division Bench further erred in law in holding that in light of the clarification by the Federal Board of Revenue (FBR) to the effect that the appellants were not entitled to the claimed exemptions, resort to departmental proceedings would not be an exercise in futility despite the fact that departmental proceedings could not possibly go against such clarification from a forum much higher in the hierarchy. 5. Mr. Salman Akram Raja, learned ASC appearing on behalf of the Respondent-FBR, focused his arguments mainly on the contention of the appellants’ counsel that the adverse orders of the Respondent Collectorate were without jurisdiction. In this context he strenuously relied on Justice Kaikaus’ words in Badrul Haque Khan v. The Election Tribunal, Dacca and others (PLD 1963 SC 704) that where there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect, does in no manner render it without jurisdiction. The customs officials therefore, in passing the concerned adverse orders/decisions, cannot be held to have acted without jurisdiction merely because they may have committed an error in interpretation of the law. In this regard he relied on the judgment in Badrul Haque Khan’s case (supra), wherein at page 736 it was held that “Unless a case of mala fides or a mere colorable exercise of jurisdiction could be made out, the decision cannot be without lawful authority” and a mere error in law or fact alone cannot render a decision without jurisdiction. In Muhammad Hussain Munir and others v. Sikandar and others (PLD 1974 SC 139) at page 142, in consonance with the judgment in Badrul Haque Khan’s case (supra), and quoting it with approval it was Civil Appeal No.1171 of 2017 etc. -: 12 :- held that “it will be going too far to say that every little breach of a rule by allowing, evidence to coming, which in strict law might not be thought admissible, would constitute an act without jurisdiction”. The same was this Court’s view in Zulfikar Khan Awan v. Secretary, Industries and Mineral Development, Gov. of Punjab & others (1974 SCMR 530) as well as Raunaq Ali etc. v. Chief Settlement Commissioner and others (PLD 1973 SC 236), Abdul Rehman Bajwa v. Sultan and others (PLD 1981 SC 522). However, he further clarified in this context that where a decision made is held to be made without the proper application of the law in place, the remedy for such a defect can only be sought by taking such decision to the prescribed grievance redressal forum, which in the present case is to be found in the appeal to the Collector under Section 193 or the Appellate Tribunal under Section 194 (as the case may be) since any determination under a special law such as the Customs Act, requires a certain level of knowledge and expertise which must be taken advantage of by approaching the abovesaid forums first and only after exhausting these remedies can the High Court be approached under Section 196 of the Customs Act. In support of this argument he relied on the judgements of Ms. Binaco Traders v. Federation of Pakistan (2006 PTD 1491), as well as Ms. Rohi Ghee Industries (Pvt.) Ltd. v. Collector of Customs (2007 PTD 878). To jump the gun by filing a civil suit directly would render such forums redundant. On the other hand he submitted that the decision with regards to the entitlement of exemption from duty and taxes or reduction in tax liability in respect of a person or establishment, otherwise, includes scrutiny and determination of disputed facts by the specialized forums and the authorities provided under the taxing statutes, including Customs Act, hence, it does not fall within the domain of original civil jurisdiction of the Civil Court particularly, in view of the specific bar in terms of Section 217 of the Customs Act. Civil Appeal No.1171 of 2017 etc. -: 13 :- 6. Barrister Sarfaraz Ali Metlo, ASC, learned counsel for the FBR submitted a list of judgments specific to tax law wherein in the presence of a statutory remedy, a suit on the civil side was held to be barred which include; Raleigh Investment v. Governor General (PLD 1947 Privy Council 19) at page 25(G), CIT v. The Tribune Trust (PLD 1947 Privy Council 247) at para 3 on page 255, The Batala Eng. V. I.T.O. (1973 SCMR 282) page 283(A), Tahir A. Khan v. CBR Sindh (2003 YLR 196) at page 199 (C, D, E & G), Chemitex Ind. V. Sup. S.T. (1999 PTD 1184) at page 1187(A), Aluminum Processing v. FOP (2003 PTD 1411) at page 1428(G), Binaco Traders’ case (supra) at page 1499(E & H), Rohi Ghee Industries’ case (supra) at page 885(C), Malik A Qayyum v. DG Int. (SBLR 2015 Sindh 969), Collector v. Universal Gateway (2005 SCMR 37) at page 44(A&B) Amin Textile Mills v. CIT (2000 SCMR 201) at page 203 para 3, Federation of Pakistan v. M/s Millennium Pharma (2011 PTD 690) etc. However, learned counsel largely adopted the arguments of Mr. Salman Akram Raja, ASC. 7. In order the appreciate the minutiae of the issue of maintainability of the civil suits filed by the appellants against the decisions of the taxing authorities/Assessing Officer under the special law of the Customs Act, it would be advantageous to reproduce the pivotal provisions viz. Section 217(2) of the Customs Act which bars the cognizance of the same by the civil courts under Section 9 of the CPC as well as Section 9 (ibid.) itself: “Section 9 of the CPC: 9. The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Section 217(2) of the Customs Act: S.217. (2) No suit shall be brought in any civil court to set aside or modify any order passed, any assessment made, any Civil Appeal No.1171 of 2017 etc. -: 14 :- tax levied, any penalty imposed or collection of any tax made under this Act.” There is not an iota of doubt that Section 9 of the CPC provides that the civil courts shall have jurisdiction to entertain any suit in relation to any civil matter except when the same is expressly or impliedly barred by the law. A plain reading of Section 217(2) reflects that the jurisdiction of the “civil courts” has in fact been barred for any assessment made, any tax levied, any penalty imposed or collection of any tax made “under the Act”. The two operative terms to determine such a bar of jurisdiction, therefore, are “civil court” and “under this Act”. The gist of the contentions of the counsel for the appellants boils down to just one aspect; that the actions of the statutory authorities being challenged are not made “under the Act” and hence the ouster clause does not apply. This is where the exceptions carved out from the bar to jurisdiction of the civil courts under the various judgments of this Court come into play. The judgments in Punjab Province v. The Federation of Pakistan (supra) Burmah Oil Company’s case (supra), Abdul Rauf’s case (supra), Jamil Asghar v. The Improvement Trust (supra), Mian Muhammad Latif’s case (supra), Hakeem Hafiz Muhammad Ghaus’ (supra) Chalna Fibre v. Abdul Jabbaru (supra), Samiullah’s case (supra), Azra Masood’s case (supra) and Hamid Hussain’s case (supra) categorically provide exemptions to such a bar to jurisdiction. An articulate illustration of these exceptions can be found in the judgment of Hakeem Hafiz Muhammad Ghaus’ case (supra) in the following words: “It is also well-settled law that where the jurisdiction of the Civil court to examine the validity of an action or an order of executive authority or a special tribunal is challenged on the ground of ouster of jurisdiction of the Civil court, it must be shown (a) that the authority or the tribunal was validly constituted under the Act; (b) that the order passed or action taken by the authority or the tribunal was not mala fide; (c) Civil Appeal No.1171 of 2017 etc. -: 15 :- that the order passed or action taken was such which could be passed or taken under the law which conferred exclusive jurisdiction on the authority or the tribunal; and (d) that in passing the order or taking the action, the principles of natural justice were not violated.” 8. The impugned judgment incorrectly states that such exemption has not been granted in tax statutes as the judgments of Mian Muhammad Latif’s case (supra) and Province of Punjab v. Federation of Pakistan (supra) clearly contradict such an untenable conclusion. However the burden then lies on the appellants to prove that they fall within the above exceptions in order to circumvent this bar to the jurisdiction of the civil courts. Since the appellants’ counsel mainly relied on the exemption from the general bar to jurisdiction on the ground of the orders/actions taken by the authority/Assessment Officer being beyond jurisdiction, first the precise scope of the jurisdiction of the Assessment Officer/authority needs to be determined. The relevant provisions of the Customs Act in this regard are reproduced below: “32. False statement, error, etc.- (1) If any person, in connection with any matter of customs,- (a) makes or signs or causes to be made or signed, or delivers or causes to be delivered to an officer of customs any declaration, notice, certificate or other document whatsoever, or (b) makes any statement in answer to any question put to him by an officer of customs which he is required by or under this Act to answer, or (c ) submits any false statement or document electronically through automated clearance system regarding any matter of Customs knowing or having reason to believe that such document or statement is false in any material particular, he shall be guilty of an offence under this section. ….. (3) Where, by reason of any inadvertence, error or misconstruction, any duty taxes or charge has not been levied or has been short-levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within three years of the relevant date Civil Appeal No.1171 of 2017 etc. -: 16 :- requiring him to show cause why he should not pay the amount specified in the notice; 80. Checking of goods declaration by the Customs.- (1) On the receipt of goods declaration under section 79, an officer of Customs shall satisfy himself regarding the correctness of the particulars of imports, including declaration, assessment, and in case of the Customs Computerized System, payment of duty, taxes and other charges thereon. (2) An officer of Customs may examine any goods that he may deem necessary at any time after the import of the goods into the country and may requisition relevant documents, as and when and in the manner deemed appropriate, during or after release of the goods by Customs; (3) If during the checking of goods declaration, it is found that any statement in such declaration or document or any information so furnished is not correct in respect of any matter relating to the assessment, the goods shall, without prejudice to any other action which may be taken under this Act, be reassessed to duty, taxes and other charges levied thereon. …… 193. Appeals to Collector (Appeals).- (1) Any person including an officer of Customs aggrieved by any decision or order passed under sections 33, 79, 80 and 179 by an officer of Customs below the rank of Additional Collector may prefer appeal to the Collector (Appeals) within thirty days of the date of communication to him of such decision or order: Provided that an appeal preferred after the expiry of thirty days may be admitted by the Collector (Appeals) if he is satisfied that the appellant has sufficient cause for not preferring the appeal within that period. ….. 194. Appellate Tribunal.- (1) The Federal Government shall constitute an Appellate Tribunal to be called the Customs Appellate Tribunal consisting of as many judicial and technical members as it thinks fit to exercise the powers and discharge the functions conferred on the Appellate Tribunal by this Act. 196. Reference to High Court. – (1) Within ninety days of the date on which the aggrieved person or Collector or Director of Intelligence and Investigation, or Director of Valuation, as the case may be, was served with order of the Appellate Tribunal under sub-section (3) of section 194B, the aggrieved person or any officer of Customs not below the rank of an Additional Collector or Additional Director, authorized by the Collector or Director in writing, may prefer an application, in Civil Appeal No.1171 of 2017 etc. -: 17 :- the prescribed form along with a statement of the case, to the High Court, stating any question of law arising out of such order.” The facts of the present appeals do not involve any aggrieved party approaching the Collector (Appeals) under Section 193, or the appellate Tribunal under Section 194. Thus the jurisdiction, to be determined with regards to the exception granted under the Hakeem Hafiz Muhammad Ghaus’ case (supra) etc. is the jurisdiction of the Assessment Officer/authority either under Section 32 or Section 80 of the Customs Act. The contention of the appellants is that the adverse actions/orders were under Section 32 whereas the respondents insist that in fact the adverse orders were reassessment orders made under Section 80 of the Customs Act. This difference in stance is vital because if the said actions/order were initiated/passed under Section 32 ibid, then as per sub-Section (3) thereof, no show cause notice in this regard was ever served upon the appellants. It has been the case of the appellants that the demand cannot be claimed to be a reassessment order since it lacks the basic features/characteristics/attributes of the same as provided for and required under Section 24 of the General Clauses Act 1897. A perusal of the adverse orders reveals the use of the words “assessment” in determining the tax liability of the appellants, therefore, in the absence of any evidence produced on the part of the appellants to prove that the order/actions were made under Section 32 ibid, it can be assumed that the said adverse orders were reassessment orders under Section 80 ibid and thus in conformity with the law. Even otherwise, the precedent laid down in Badrul Haque Khan’s case (supra) with regard to an action/order being beyond jurisdiction is that it will be going too far to say that every little breach of a rule would constitute an act “without lawful authority”. So far as the nature of the act/action was such that it can be said to be made within the powers given to it (the authority passing the order or Civil Appeal No.1171 of 2017 etc. -: 18 :- taking the action) for determination/assessment under the Statute, it cannot be said to be beyond jurisdiction. The nature of the power exercised by the authority/Assessment Officer was within its powers to assess, reassess and determine the tax liability of a person, and since the same is in consonance with the spirit of Section 80 ibid, it cannot be said to be beyond jurisdiction. This approach finds further support in the judgment in Badrul Haque Khan’s case (supra) wherein it was held that “I do not see any difference in a case where the question of law decided is a matter on which two opinions can easily be held and a case where the decision on a question of law appears to be clearly erroneous.”. The same view was held in Muhammad Hussain Munir’s case (supra), Zulfikar Khan Awan’s case (supra) as well as Raunaq Ali’s case (supra), Abdul Rehman Bajwa’s case (supra) as well as in Ms. Friend Engineering Corporation v. Government of Punjab (1991 SCMR 2324) wherein this Court held that by “jurisdiction” is meant a power to hear and decide a legal controversy between parties, and if the order is contrary to the law that would not render it as one without jurisdiction. We, therefore, hold that the adverse orders/actions by the Assessment Officer/Customs authorities cannot be said to be beyond jurisdiction and thus fail to circumvent the bar to jurisdiction of civil courts imposed on the civil courts under Section 217(2) of the Customs Act. Although the appellants have also relied on the exception where an action/order is tainted with mala fide, no proof or tangible argument in this regard has been raised besides blowing smoke of the allegedly prevalent corruption in the Customs Department. Therefore we conclusively hold that the appellants do not fall within the ambit of the exceptions carved out by the judgments of this court with respect to a bar to the jurisdiction of civil courts. However, this does not mean that a wrong interpretation of the law cannot be corrected thus leaving the aggrieved remedy-less; as correctly Civil Appeal No.1171 of 2017 etc. -: 19 :- highlighted in the impugned judgment, the grievance redressal mechanism in the Customs Act as well as other taxing statutes and the hierarchy of appellate forums created thereunder are remedies available to the person/entity aggrieved by an adverse order of the Assessment Officer/Customs Officer, and only after the exhaustion of the same should the Division Bench of High Court be approached under Section 196 of the Customs Act. A crisp overview of the assessment of duty on imported goods under the Customs Act and the grievance redressal system provided in the statute for objections to such assessment is as follows: Section 80 ibid prescribes the manner in which an officer of Customs shall satisfy himself as to the correctness of the good declaration made by or on behalf of the importer whereas under sub-section (3) thereof the officer of Customs has the power to reassess the duty, taxes or other charges levied under the Customs Act; any person aggrieved of such assessment/reassessment may appeal to the Collector under Section 193 of the Customs Act, and the next forum of appeal from this is the Appellate Tribunal under Section 194 of the Customs Act. Any person aggrieved of the orders of the Appellate Tribunal may then file a reference to the High Court pursuant to Section 196 of the Customs Act, subsection (4) of which stipulates that such reference may be heard by no less than two judges of the High Court. 9. The question as to whether cognizance of a suit against such adverse orders may be taken by the Single Bench of the Sindh High Court at Karachi in exercise of its civil jurisdiction, and whether it also falls within the definition of “civil courts” for the purposes of Section 217(2) of the Customs Act, is addressed in the second formulation below. II. Whether the exercise of the original civil jurisdiction by the Single Bench of the Sindh High Court is ultra vires of the Constitution of the Islamic Republic of Pakistan (Constitution) in light of Article 25 thereof? And further, whether the exercise of this civil jurisdiction by the Single Bench of the Sindh High Court will render it to be a civil court for the purposes of the ouster clause in Section 217(2) of the Customs Act? Civil Appeal No.1171 of 2017 etc. -: 20 :- 10. An ancillary submission made Mr. Khalid Anwar, learned Sr. ASC is that the suits which were taken up in exercise of the civil jurisdiction by the Single Bench of the Sindh High Court for the District of Karachi, are saved from the ouster clause in Section 217(2) of the Customs Act which only bars the jurisdiction of the Civil courts to set aside or modify any order passed, any assessment made, any tax levied, any penalty imposed or collection of any tax made under the said Act. Therefore, the exercise of original civil jurisdiction by the Single Bench of the Sindh High Court remains unaffected by the said ouster clause. Reading out the bar contained in Section 217(2) of the Customs Act, he emphasized on the words “civil court”, thus stating that it is only cognizance by the ordinary civil courts which is barred, perhaps on account of the lack of expertise that a Civil Judge may have in the matter; however, cognizance by the Single Bench of the High Court is by no means barred under the said Section. 11. With regards to the constitutionality of the exercise of civil jurisdiction by the Single Bench of the Sindh High Court at Karachi, by way of providing a background of the origin of the same, he read out the language of Section 2 of the Bombay Act No.1 of 1906 which established the Court of the Judicial Commissioner in Sindh, which he submitted was the highest Court of Appeal in civil and criminal matters for the Province of Sindh and it was a District Court and Court of Sessions for Karachi. This Court of the Judicial Commissioner, he stated, continued to function until the enactment of the Sindh Courts Act 1926 (Act of 1926) which came into force in 1940, by way of a notification published in the official gazette by the Sindh Government. Section 3 of the Act of 1926 established a Chief Court of Sindh; Section 8 of this Act empowered the Chief Court of Sindh to be the highest civil and criminal court of appeal and revision for Sindh. He then read out Section 8 of the Act of 1926 which he categorically Civil Appeal No.1171 of 2017 etc. -: 21 :- submitted cannot be read in isolation without reading it with Section 22 of the same Act. The latter Section provides that there shall be in each civil district other than, that of Karachi a district court and the Provincial Government shall appoint a district judge to each such court. He specifically highlighted that from the constitutional perspective the most important thing to note is that the Act of 1926 is a provincial statute hence prima facie it appears that the status of the Chief Court can only be seen as a provincial Court i.e., civil/criminal Court for the District of Karachi. Relying heavily on the judgment of this Court reported as Province of Sindh v. Haji Razzaq (PLD 2017 SC 207) (which he submitted has also been followed by this Court in the judgment of Mian Akbar Hussain v. Mst. Alishbai (PLD 1991 SC 985)) he stated that the original conception of the law was that this Court was merely the creation of a Provincial Statute, whereby the Single Bench of the High Court was exercising the power of a District Court therefore it essentially had the same status but has been given an elevated designation. Radical changes followed thereafter; referring to Section 219 of the Government of India Act, 1935 which defines a “High Court” to include the Chief Court in Sindh, stressing on the words “deemed to be a High Court”. Reading out the proviso to the same, he pointed out that on this date there were already a certain number of High Courts for example in Calcutta, Lahore, Madras, etc., and these Courts in Sindh, etc., could have been converted into High Court(s). He conceded that this proviso was deleted in the year 1955 by the Order of 1955(supra). In 1955 it was constituted as the Karachi Bench of the West Pakistan High Court, it is no longer as it was previously, deemed to be a High Court under Section 219(ibid), and now it is of the same status as the Lahore High Court. Thus, after perusal of this decisive constitutional change, there remains no doubt about the constitutionality of the Single Bench of the Sindh High Court which pursuant to Section 219 was given the status of a High Civil Appeal No.1171 of 2017 etc. -: 22 :- Court. Mr. Farogh Naseem, ASC, who also appeared on behalf of the appellants, relying upon the same judgment in Haji Razzaq’s case (supra) presented a completely contrasting contention, stating that the Single Bench of the Sindh High Court in Karachi was in fact exercising a special jurisdiction as opposed to an ordinary civil jurisdiction. Concentrating particularly on the historical background of this exercise of civil jurisdiction by the Single Bench of the High Court, in this regard he relied heavily on the judgment in Firdos Trading Corporation v. Japan Cotton & General Trading Co. Ltd. (PLD 1961 Karachi 565) wherein Mr. Waheeduddin J. held that “it is therefore perfectly clear that this jurisdiction is of special nature and is not the ordinary civil jurisdiction of the West Pakistan High Court....”. He further relied upon page 222 of the judgment in Haji Razzaq’s case (supra) wherein Waheeduddin J.’s view was again concurred with in holding that: “The scheme of the Establishment of West Pakistan Act, 1955, clearly shows that as a special measure Karachi Bench was allowed to continue to perform the duties of the principal civil Court of original jurisdiction in Karachi, which is a special jurisdiction and by no stretch of argument can be considered as the ordinary original civil jurisdiction of the West Pakistan High Court as is generally known. The history of the establishment of the High Courts in this sub-continent shows that there were only three Courts which were conferred ordinary original civil jurisdiction within certain limits under their Letters Patent. No other High Court established under the High Courts Act of 1861 or under the Government of India Act, 1915 or under the Government of India Act, 1935 was invested with powers of ordinary civil jurisdiction. The Chief Court of Sindh was no doubt a High Court within the meaning of section 219 of the Government of India Act, but the jurisdiction which it exercised in the civil district of Karachi was not that of an ordinary original civil jurisdiction of the High Court but it was only performing the duties of the principal Civil Court of original jurisdiction within the district of Karachi under a special statute viz. section 8 of Sindh Courts Act, 1926.” [Emphasis supplied] Civil Appeal No.1171 of 2017 etc. -: 23 :- Thus he concluded stating that cognizance of a civil suit by the Single Bench of the Sindh High Court at Karachi in this special jurisdiction, is not barred under Section 217(2) of the Customs Act. 12. Mr. Salman Akram Raja, ASC supported the view in the impugned judgment in this regard, submitting that there can be no cavil with the assertion that the Learned Single Bench at Karachi in exercising original civil jurisdiction, in effect acts in the capacity of a civil court and therefore, to say that the bar to jurisdiction of civil courts under Section 217(2) does not apply to the Single Bench is absolutely untenable. Fortifying this argument, he read out Section 8 of the Act of 1926, whereby the Chief Court at Sindh was established and under Section 8 thereof the civil and criminal jurisdiction of the Chief Court was outlined in that “The Chief Court shall be the highest civil Court of appeal and revision ….and the principal civil Court of original jurisdiction for the civil district of Karachi and shall be the Court of Session and shall exercise the powers and perform the duties of a Sessions Judge in the Sessions Division of Karachi”. Thus there can be no ambiguity in the fact that the principle original jurisdiction of Sindh High Court at Karachi is neither the ordinary nor the extra ordinary civil jurisdiction of the Court, but simply the civil court's jurisdiction. Concurring with the view laid out in the impugned judgment, he submitted that the restrictions and qualification imposed in terms of Section 9 of CPC, are equally applicable in respect of a suit before High Court in exercise of original civil jurisdiction. 13. In light of the above arguments, it is evident that in this context, the only judgment of this Court in the field which carefully examines the exercise of the civil jurisdiction by the Single Bench at Karachi and the implications of the same on its status is found in Haji Razzaq’s case (supra) wherein on page 219 a brief background of the origin of such jurisdiction is comprehensively explained: Civil Appeal No.1171 of 2017 etc. -: 24 :- “Accordingly the Governor-General by G.G. Order No.19 of 1955 created the West Pakistan High Court with its seat at Lahore and Benches at Karachi and Peshawar and Circuit Courts at other places within the Province consisting of such Judges as may from time to time be nominated by the Chief Justice. Para 3 of this Order provided that the High Court shall have such original, appellate and other jurisdiction and such powers and authority in respect of the territories included in the Province of West Pakistan as the High Court of Judicature at Lahore had immediately before the commencement of this Order, in respect of the territories in relation to which it exercised appellate jurisdiction. The Letters Patent of the Lahore High Court was also applied to West Pakistan High Court subject to such modification and alteration as the provisions of the Establishment of West Pakistan Act, 1955 or any order made thereunder or any other law for the time being in force may warrant. Under para 5 of the said Order it is laid down that notwithstanding anything in this or in any other law for the time being in force, the Bench of the High Court at Karachi shall have the same original civil jurisdiction for the civil district of Karachi and the same criminal jurisdiction and powers of the Court of Session for the Sessions Division of Karachi, as were exercisable, immediately before the commencement of this Order, by the Chief Court of Sindh under section 8 of the Sindh Courts Act, 1926, subject to the power of the Governor-General to direct that, as from a specified date such jurisdiction and powers shall cease to be exercisable by that Bench and as from that date that Bench shall cease to exercise that jurisdiction and powers.” From the above articulate synopsis of the historical background of the Sindh High Court, it transpires that the Governor General through the High Court of West Pakistan (Establishment) Order (Order No.XIX) of 1955 (Order of 1955) created the High Court of West Pakistan with its seat inter alia at Karachi. Under para 5 of the said Order it has been provided that notwithstanding any other law for the time being in force, the Bench of the High Court at Karachi shall have the same original jurisdiction for the civil district of Karachi as was exercised prior to the commencement of this Order under the Act of 1926; the jurisdiction thus is the same but the status has been elevated. Prior to the Order of 1955, the “Chief Court” by virtue of Section 219 of the Government of India Act, 1935, was deemed to Civil Appeal No.1171 of 2017 etc. -: 25 :- be a High Court, whereas after the enactment of this Order of 1955 the same had been given the permanent status of a High Court bringing it at par with other High Courts. The Single Bench of the Sindh High Court is therefore a “High Court” and cannot be equated with any other civil court and hence falls outside of the ambit of the ouster clause. This view finds support in Haji Razzaq’s case (supra) wherein this Court came to the conclusion that the Chief Court of Sindh was not a District Court within the meaning of section 2(4) of the Civil Procedure Code. The definition of “District Court” has been given at page 223 of the Haji Razzaq’s case (supra) wherein it was held that: “It will be pertinent to refer here to the definition of "district" in section 2(4) of the Civil Procedure Code. In this definition a clear distinction is made between the local limits of the jurisdiction of a principal Civil Court of original jurisdiction and the local limits of the ordinary original civil jurisdiction of the High Court. It reads as under: 'District means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a 'District Court') and includes the local limits of the ordinary original civil jurisdiction of a High Court.' This distinction also appears from the definition of "District Judge" in section 3(17) of the General Clauses Act, which is in the following terms:- District Judge shall mean the Judge of a principal Civil Court of original jurisdiction, but shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction." It appears to me that the expression "Principal Civil Court of original jurisdiction" is not so much a description of any particular class of Courts, as a designation thereof. But there can be no doubt that this jurisdiction is distinct from the ordinary civil jurisdiction of the High Court.” 14. This Court thus agreed with the finding in para No.12 of the judgment of Thadani, J. reported as In the Matter of Muhammad Osman Sumro (AIR 1948 Sindh 89) wherein he observed that 'It is not disputed Civil Appeal No.1171 of 2017 etc. -: 26 :- that this Court is a High Court. But … as I have pointed out before, if this Court is a district Court, when exercising its original civil jurisdiction, by reason of section 2(4), C.P.C., the right of appeal would also be governed by the Code of Civil Procedure from a decision of a single Judge of this Court. In view of section 14, Sindh Courts Act, 1926, however, I do not think such an interpretation is permissible”. Therefore, even prior to the Order of 1955, this Court, in light of Section 14 of the Act of 1926, was a “High Court” merely exercising the original civil jurisdiction for the District of Karachi. As insisted upon by the learned counsel for the appellants, we are convinced by the argument that in light of the above, the Single Bench of the Sindh High Court, regardless of what jurisdiction it exercises, is a "High Court” and will always remain a High Court because it is a constitutional Court and is not a District Court, therefore the two cannot be equated by any stretch of imagination. 15. Obviously, a literal interpretation of Section 217(2) would lead to the conclusion that only “civil courts” are barred from taking cognizance of civil suits arising out of disputes regarding the claim of entitlement to exemption from tax duties under the Customs Act. Had it been the intention of the Legislature to bar the cognizance of any court exercising civil jurisdiction, the language of the said provision would have used the words “civil original jurisdiction” and not simply used the term “civil courts”. This approach can be grasped better when looked at with the rich history of this exercise of civil jurisdiction by the Single Bench of the High Court, an overview of which has been beautifully encapsulated in the judgement of Haji Razzaq’s case (supra); the Legislature was aware of such exercise of special jurisdiction and thus had its intention been to place a complete bar on cognizance by any court exercising such jurisdiction, it would have used language that clearly reflected its intent. The question of the status of the Single Bench of the Sindh High Court at Civil Appeal No.1171 of 2017 etc. -: 27 :- Karachi, stands conclusively decided in the judgment of Province of Sindh v. Haji Razaq judgment(supra) which relies almost entirely on Justice Waheeduddin Ahmed, J’s judgment in Firdous Trading Corporation v. Japan Cotton and General Co. Ltd. (supra) wherein he had in unequivocal words stated that: “I have not the slightest doubt on the language of section 3 of Sindh Act, 1926 and the definition of "District" in section 2(4) of the Civil Procedure Code, that it was exercising District Court jurisdiction in contradistinction to the ordinary original civil jurisdiction of the High Court. In my opinion the mere fact that the Sindh Chief Court later on was included within the definition of High Court under section 219 of the Government of India Act, did not change the nature of this jurisdiction” This view, being the conclusive view of this Court ever since Haji Razzaq’s case (supra) as the settled law on the matter shall prevail. We therefore hold that the High Court of Sindh, is a ‘High Court’ and for this reason, the Single Bench of the Sindh High Court was correct in holding the suits of the appellants to be maintainable. A statutory provision must be interpreted within the meaning that is attributed to it by the language and specific words used by the Legislature, and the principles of law dictate that redundancy cannot be attributed to any word used therein. Section 217(2) therefore, only bars the cognizance of suit filed under the civil jurisdiction exercised by the civil courts, and this bar cannot be extended to include the exercise of the same jurisdiction by the Single Bench of the Sindh High Court at Karachi. As for the question regarding whether, Article 25 of the Constitution can be said to have been violated by allowing such special jurisdiction to the Sindh High Court while the same is not available to other Provinces is concerned, suffice it to say that such jurisdiction has been exercised by the Sindh High Court at Karachi as far back as the pre-partition era. Striking a careful balance between the fundamental right to be treated in accordance with the law under Article 4 Civil Appeal No.1171 of 2017 etc. -: 28 :- of the Constitution and Article 25 thereof, the principles of justice would require that the litigants in Sindh High Court at Karachi are not deprived of this forum of grievance redressal which is limited to only Karachi, as this right to approach such forum has accrued to them over decades and the law mandates certainty in the judicial administration system. III. Whether the appellants are entitled to the relief sought? 16. In the present appeals, the appellants have successfully been able to obtain interim injunctions some of which date back to as long as ten years ago, thus in the process the Federal Exchequer has been deprived of tax money worth millions of rupees. When this situation was pointed out to the learned counsel for the parties, the appellants’ counsel Mr. Khalid Anwar, was quick to respond and stated that in terms of monetary gains, filing of writ petitions and approaching the courts in fiscal matters is in fact more expensive for importers/appellants than it is to pay the required tax applicable under the law. However, he stated that if he were to today take a pebble and throw it at the Custom House/Department at Karachi, there is an 80% probability that it will hit a corrupt official. Corruption has become a plague in the Custom House/Department and no one has any faith in its officials. Secondly he submitted that as opposed to the High Court in Lahore where writ petitions are heard by a Single Bench, in Karachi writ petitions are heard by Division Benches and there are only two Division Benches hearing tax related matters. If a uniform system is introduced and more Division Benches of the High Court at Sindh start hearing tax matters, the civil jurisdiction of Single Bench of the Sindh High Court at Karachi will no longer be invoked by parties. If the same cannot be done, in the alternative those aggrieved by the orders of tax authorities under taxing statutes such as the Customs Act should be allowed to continue to approach the Singh Bench at Karachi in its civil jurisdiction with a Civil Appeal No.1171 of 2017 etc. -: 29 :- guideline given to the same to dispose of tax disputes expeditiously within a period of a year or less. While the real picture may not be as grim as painted by the counsel for the appellant to advance his case, the counsel for the respondents could offer no concrete argument to refute such claims of prevailing corruption. In order to grow economically, it is imperative that even the ugliest truths be acknowledged in order to commence the journey of curbing, correcting and reducing this unfortunate menace that not only our country, but all of South Asia faces. 17. Keeping in view the alarming allegations made above, it is directed, that while the Single Bench of the Sindh High Court at Karachi may still take cognizance of any suit arising out of an action/order of the tax authorities/Customs Officers, such jurisdiction must be sparingly exercised by the Single Bench and the suits must be expeditiously decided within the period of one year or less so that these suits are not used by aggrieved parties as a means to deprive the Public Exchequer of the taxes due for years on the basis of interim injunctions. Furthermore, as a guiding principle, to bring some certainty and uniformity in the treatment of such suits, the suits filed and those that have already been filed must only be entertained on the condition that a minimum of 50% of the tax calculated by the tax authorities is deposited with the authorities as a goodwill gesture, so that on conclusion of the suit, according to the correct determination of the tax due or exempt (as the case may be), the same may be refunded or the remaining balance be paid. 18. For the foregoing reasons, while allowing these appeals, it is held and directed as under:- (1) the adverse orders/actions by the Assessment Officer/Customs authorities cannot be said to be beyond jurisdiction and thus fail to circumvent the bar to jurisdiction of civil courts imposed under Section 217(2) of the Customs Act; Civil Appeal No.1171 of 2017 etc. -: 30 :- (2) the Single Bench of the Sindh High Court, regardless of what jurisdiction it exercises, is a “High Court” and will always remain a High Court because it is a constitutional Court and is not a District Court. (3) Section 217(2) ibid only bars the cognizance of suit(s) filed under the civil jurisdiction exercised by the civil courts, and this bar cannot be extended to include the exercise of the same jurisdiction by the Single Bench of the Sindh High Court at Karachi; (4) allowing such special jurisdiction to the Sindh High Court, while the same is not available to other Provinces, does not violate the provision of Article 25 of the Constitution; (5) the suits of the appellants filed before the Single Bench of the Sindh High Court at Karachi are maintainable; (6) despite the fact that the Single Bench of the Sindh High Court at Karachi can take cognizance of any suit arising out of an action/order of the tax authorities/Customs Officers, such jurisdiction must be sparingly exercised and the suits must be expeditiously decided within the period of one year or less; and (7) the suits, which are already pending or shall be filed in future, must only be continued/entertained on the condition that a minimum of 50% of the tax calculated by the tax authorities is deposited with the authorities. 19. As the main appeals are allowed, the applications for impleadment are disposed of accordingly. CHIEF JUSTICE JUDGE JUDGE Announced in open Court on 27.6.2018 at Islamabad Approved for reporting Waqas Naseer

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE FAISAL ARAB MR. JUSTICE MUNIB AKHTAR CIVIL APPEAL NO. 1178 OF 2008 (On appeal against the judgment dated 03.11.2006 passed by the High Court of Balochisan, Quetta in REA Nos. 26 & 27/1999) Haji Baz Muhammad Khan & Haji Dad Muhammad Khan … Appellants VERSUS Noor Ali and Shakil Ahmed … Respondents For the Appellants: Mr. Kamran Murtaza, Sr. ASC For the Respondent (1): Mr. Zulfiqar Khalid Maluka, ASC For the Respondent (2): Ex-parte Date of Hearing: 24.05.2018 JUDGMENT FAISAL ARAB, J.- The respondent No. 1 was tenant of respondent No. 2 in a shop bearing Municipal No. 4-24/14 situated in Liaqat Bazar, Quetta. In the year 1992, the respondent No. 2 orally agreed to sell this shop to respondent No. 1 for a sale consideration of Rs.3,10,000/-. The terms of the oral agreement that have come in evidence were that respondent No. 1 paid a sum of Rs.50,000/- as advance and the balance amount of Rs.260,000/- was required to be paid within a period of three months. When respondent No. 1 failed to make payment within the stipulated time, the time to complete the transaction was enhanced by a period of 1/2 years. However, even within such extended period, respondent No. 1 did not fulfill his contractual obligation. Subsequently, a dispute arose between the parties who then Civil Appeal No. 1178/2008 2 agreed to refer the matter to arbitrators for settlement. The arbitrators gave their award on 26.09.1995, in terms whereof respondent No. 1 was to vacate the shop under his tenancy and hand it over to respondent No. 2 by 26.10.1995 and in consideration thereof respondent No. 2 was to pay a sum of Rs.1,400,000/- to respondent No. 1. This decision rendered by the arbitrators was not challenged by any of the parties in any legal proceedings. As respondent No. 1 did not handover the possession of the shop, the respondent No. 2 thereby also did not pay him the amount determined by the arbitrators. Respondent No. 2 then sold the shop to the appellants, who filed eviction proceedings against respondent No. 1 after which respondent No. 1 on his part filed a suit for specific performance of the contract in 1996 on the basis of the oral agreement to sell arrived at in 1992. It is this suit, which is the subject matter of the present proceedings. The suit was decreed in favour of respondent No. 1 vide judgment dated 02.04.1999. The appellants and respondent No. 2 filed their respective appeals in the Balochistan High Court but the same were dismissed vide the impugned judgment. Hence, this appeal with leave of the Court. 2. The legal effect of the arbitrators’ decision, which remained unchallenged was that the respondent No. 1 gave up both his right to seek specific performance of the contract under the oral agreement as well as his tenancy rights on the condition of receiving Rs.1,400,000/- from respondent No. 2, the original owner of the shop in question. In such circumstances, the respondent No.1 could not have sought specific performance of the oral Civil Appeal No. 1178/2008 3 agreement that stood novated on terms reflected in the arbitrators’ award signed and acknowledged by both the parties. Once a party novates a contract then enforcement of the earlier agreement cannot be sought in terms of Section 62 of the Contract Act unless it is expressly stipulated in the fresh agreement that his rights in the original agreement will not be prejudiced. Thus the oral agreement to sell came to an end and in consequence thereof the respondent No. 1 was only entitled to receive Rs.1,400,000/- and handover the possession of the shop to respondent No. 2. Thus the suit for specific performance was not maintainable. The key principle of such an effect is discussed in the case of Habib Ahmad Vs. Meezan Bank Ltd (2016 CLC 351) whereby it was held as under:- “Novation would mean and be construed when contract already in existence is extinguished and a new contract is created where-under new rights emerge in favour of the parties. Unless the rights under the old contract are explicitly relinquished, no new contract comes into force. The procrastination by a party to abide by terms of the contract, which in the present context appears to gain benefit out of it, would not mean novation of the contract; it comes about where parties to the contract mutually agree to substitute it with the new contract. Therefore if a party alleges novation of a contract, it has to establish these prerequisites. For reliance the case of Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon, etc. reported in NLR 1995 SCJ 19 is referred to.” 3. We, therefore, vide our short order directed respondent No. 2 to deposit Rs.1,400,000/- in this Court within a period of sixty days which shall then be paid to respondent No. 1. We have already mentioned in our short order that there shall be no Civil Appeal No. 1178/2008 4 extension in time for any reason whatsoever and failure to deposit the amount within this period shall result in dismissal of this appeal and the respondent No. 1 shall be entitled to retain the possession of the shop in his capacity as tenant of the appellants who are the successor-in-interest of respondent No. 2. Within fifteen days of such deposit, the respondent No. 1 was required to handover vacant peaceful possession of the property to the appellants. If the respondent No. 1 fails to do so, the appellants shall be at liberty to file an application before Executing Court, which shall issue writ of possession without notice and put the appellants in possession of the property. The respondent No. 1 shall be entitled to receive the amount deposited in this Court after the possession of the property is handed over to the appellants. 4. The above are the detailed reasons of our short order of even date vide which we allowed this appeal and set aside the impugned judgment. JUDGE JUDGE JUDGE Islamabad, the 24th of May, 2018 Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Anwar Zaheer Jamali Mr. Justice Ejaz Afzal Khan Mr. Justice Mushir Alam Civil Appeal No.1184 of 2011 Against judgment dated 14.01.2011 of Federal Service Tribunal, Islamabad passed in Appeal No.325(P)CS/2010. Mst. Basharat Jehan Appellant(s) VERSUS Director General, Federal Government Education, FGEI (C/Q) Rawalpindi & others Respondent(s) For the Appellant(s): Mr. Ghulam Nabi Khan, ASC For the Respondent(s): Mr. Sajid Ilyas Bhatti, DAG Date of Hearing: 11.07.2014 JUDGMENT MUSHIR ALAM, J-. Instant Civil Appeal is pursuant to leave granting order dated 7.12.2011 which reads as follows; “Inter alia contends that the learned Service Tribunal did not appreciate that in terms of Chapter II of National Command Authority Rules, para 7 (k), for initial appointment, the age prescribed was “not be less than 18 years or more than 35 years of age”. However, it was specifically stipulated therein that the said limit “may be relaxed in exceptional cases upto the maximum of forty five years by the Competent Authority as mentioned in the Delegation of Powers”. 2. Having heard petitioner’s learned counsel at some length, leave is granted inter alia to consider whether while dismissing petitioner’s appeal, the learned Tribunal considered the afore-referred.” 2. Facts that form basis for the above order appear to be that Appellant aggrieved by judgment dated 14.1.2011 passed by the Federal Service Tribunal, Islamabad, whereby Service appeal filed by the Appellant, challenging her removal from service vide order dated 20.3.2010 under Removal of Service (Special Power) Ordinance, 2000 (herein after referred as RSO, 2000) on the ground of misconduct for allegedly not providing the proof of relaxation in age limit as required in her appointment letter dated 14.07.2007. C. A.No.1184 of 2011 2 3. In response to advertisement in news papers dated January 2007, Appellant applied for the position of Assistant Librarian (BPS-09). Beside other educational qualifications, upper age limit for the said post in the advertisement was 35 years. Last date for the application was 31.01.2007. 4. Appellant applied for the said post, she appeared and qualified the written test, which was held on 18.2.2007. She appeared in interview and was selected on merits. She was issued appointment letter dated 14.07.07 and accordingly joined the Federal Government Girls High School, Risalpur, along with her joining she furnished certificate of age relaxation to the School, per certificate at (page-60). After joining the School, her qualifications were also got verified on 11.8.2007 (Page-61). It is the case of the appellant, that to her utter surprise she received a letter dated 21.9.2007 notifying cancellation of her appointment on the ground of being over aged. Appellant challenged the order before the Federal Service Tribunal. The Service Tribunal vide its order dated 2.2.2010 set aside the termination order being against the principle of natural justice and without any show cause notice. 5. Appellant was accordingly issued another Show Cause Notice dated 20.2.2010 on the same ground as mentioned in preceding paragraph. Appellant in response relied upon Notification dated 28.11.2011 whereby age was generally relaxed by 05 years over and above 35 years of age as advertised against said post. She was however removed from services, under RSO, 2000, which order was also challenged through impugned Judgment dated 14.1.2011 passed by C. A.No.1184 of 2011 3 learned Federal Service Tribunal, whereby her Service Appeal was dismissed. 6. Learned ASC for the appellant, contended that as per appointment letter dated 14.7.2007 of which condition No.(d) and (f) are relevant reads as follows: “d. The appointee will have to provide age relaxation proof (covered under the Federal Government age relaxation Policy) in case he/she is born before 01.08.1978. f. The appointees will draw pay/allowances as fixed by the Federal Government and will be regulated by such rules/orders as are in force or may be made by the Federal Government/Department from time to time.” (underlined to emphasize). 7. It was urged by the learned ASC for the Appellant that qualifying age against the subject post of Assistant Librarian (BPS-09), was clearly mentioned in the advertisement as 35 years, which was also as per Notification issued under Civil Servant (Appointment, Promotion and Transfer) Rule, 1973 dated 3rd June 2004, whereby age limit was revised from 25 years to 35 years (Page-62 0f the file). 8. It was urged that the Appellant was of 37 years of age at the time of applying for said position and was entitled for general relaxation of 05 years of age as per Government Policy, which was applicable on all the department under the Federal Government, under Office Memorandum No.F.9/2/9 R5 dated 28th November, 2000. It was further urged that one Shahnaz Parveen appointed as M.TT was 39 years of age at the urdu medium Girls Middle School, Malir Cantt, Karachi was also appointed and no exception to her being over aged was taken, thus Appellant is being discriminated. 9. It was argued by the learned ASC for the appellant that in the first place no relaxation in age was required in view of the policy decision of the Federal Government, through Memorandum mentioned herein. It was next urged that if it was required, such was submitted at C. A.No.1184 of 2011 4 the time of joining and so also alongwith reply to Show Cause Notice (Page-40). It was stated that the policy decision as to age relaxation was being followed by various departments under the Federal Government, including Federal Directorate of Education/Respondents. To buttress his arguments he has drawn our attention to various advertisements including those issued by respondents for the similar post for subsequent years to show that maximum age for the appointment to various position including BPS-09, to which post the Appellant was appointed as per condition No.6 thereof is 35 years and it was specifically mentioned ”maximum age limit is 35 years, as per government policy relaxation of 05 years is given, therefore all such persons who are 40 years of age on the cut of date of application”, copies of such advertisements are available at pages No.44, 45, 46 and 47. It was argued that Federal Service Tribunal did not advert to such aspect of the matter, which rendered the impugned judgment erroneous. 10. Mr. Sajid Ilyas Bhatti, learned DAG urged that the maximum age for the subject position was 25 years and after giving relaxation of 05 years therefore for the subject post age was 30 years. According to him last date for the receipt of the applications is 31.01.2007, appellant was 37 years 04 months and 14 days. Therefore, on the date of application, she was over aged and was nor eligible for the appointment without obtaining age relaxation from the competent authority as required, which she failed. According to learned DAG, appellant was rightly removed from services. 11. When attention of learned DAG was drawn to the order of this Court dated 05.09.2013 which reads as follows; “We have heard learned counsel for the appellant and learned Deputy Attorney General at some length. Learned Deputy Attorney C. A.No.1184 of 2011 5 General has not been able to respond as to how the appellant was overage because admittedly she was 37 years of age at the time of appointment and in terms of the advertisement issued in the newspaper the maximum age limit was 35 years but there was relaxation of five years in terms of the notification No.F.9/2/9 R5 dated 28.11.2000. Let the concerned official of the Ministry of Defence not below the rank of a Joint Secretary appear in Court for a date in the week commencing from 16.09.2013.” (Underlined to add emphasis) 12. In response he has drawn our attention to Cabinet Division’s decision dated 10.9.1997 and Notification dated 13.02.2013, respectively made available through CMA.No.2105 of 2014 whereby, through first mentioned decision; the management and control of Educational Institutions which include Schools and Colleges in Cantonment and Garrison, now vest in Director Army Education, GHQ. And as per later Notification dated 13.02.2013, qualifying eligibility for the Librarian is 05 years experience as Assistant Librarian (BPS-09). He has attempted to show by comparative chart placed on record through referred CMA that originally age for the advertised position was 25 years and giving benefit of the subject notification it was 30 years, but in the advertisement by typo error it was mentioned as 35 years, as such petitioner cannot be extended further age relaxation. According to learned DAG, since 10.9.77 Control and management of all the School and Colleges in Cantonment and Garrison have been transferred to the DAE, GHQ Rawalpindi therefore all appointments, transfer and posting are to be carried out under such directive.. It may be noted that such placement of Schools and Colleges under the Administrative and Management control of the Respondents would not them take them out of the pale of Department of Federal Government; and would be bound by all the policy directive. It is not the case of the Respondents that Respondents have become autonomous body and therefore not bound by the directives of the Federal Government. C. A.No.1184 of 2011 6 13. The documents as relied upon in the CMA 2105/14 do not answer any quarry raised in the order reproduced in the preceding paragraph nor, as noted in the leave granting order as noted in the opening part of this judgment. Learned DAG admits that the age given against the advertised post of Assistant Librarian (BPS-09) was mentioned in the advertisement was 35 years. It was also admitted that no corrigendum to such purported error was issued. Learned DAG though state that age relaxation of 05 years was given by the Federal Government, but according to him it was already extended to the Petitioner and no further age relaxation is possible. 14. As it could be gleaned from the record and as per Notification dated 28.11.2000, referred to in the order of this Court, noted above, age was revised and all the departments of the Federal Government were required to specifically mention such fact in the advertisement. As noted, in various advertisements placed on record, such fact finds mention. Relevant paragraph of the notification reads as follows: - “The maximum age limit prescribed or initial appointment under any rules for the time being in force shall be relaxed for a period of five years. 2. the above cited relaxation is with reference to the upper age limit prescribed in the recruitment rules of posts made under sub rule (2) of rule 3 of the Civil Servants (Appointment, promotion and Transfer) Rules, 1973 and is not applicable to the case of competitive Central Superior services Examination conducted by the Federal Public Service commission. 3. All ministers/Divisions/Departments and the Federal public Service commission are, therefore, requested to clearly indicate in their advertisements that government has allowed general relaxation upto five years over the age limit prescribed in the recruitment rules of posts and given in the advertisement.” 15. As noted in the narrative above, as per Notification issued under Civil Servant (Appointment, Promotion and Transfer) Rule, 1973 dated 3rd June 2004, original age limit fixed for the appointment to the post of BPS-09 was 25 years, which was revised to 35 years. In this view C. A.No.1184 of 2011 7 of the matter it cannot be said that she was over aged as she did not obtained age relaxation, as none was required. As noted above, if there was any lapse it was on the part of the Respondents. If the Notification/memorandum as noted above had gone unnoticed by them, it is not the fault of appellant. It is not the case of the Respondents that she procured the appointment letter through dubious means. Since appellant cannot be attributed any wrong on her part, respondents cannot be allowed to take benefit of their own oversight, lapse or ignorance of law (i.e. Notification/Memorandum of relaxation of general age dated 28.11.2000). 16. The representation of the Appellant was dismissed on the ground inter-alia, that the qualifying age was wrongly mention in the advertisement as 35 years instead of 25 neither can be attributed to the appellant, nor any corrigendum was published in the newspapers to such an effect. Such position, taken now appears to be an after-thought. Appellant as noted above had joined the services after appearing in the qualifying test and so also qualified the interview. From the date of application dated 31.01.2007 till letter dated 14.07.2007 calling upon her to join and take charge on 1.8.2007 for seven months it did not occurred to the Respondents that she is over aged by two years (37.years) as against the age of 35 as advertised. We have also noted that in terms of Chapter-II of National Command Authority Rules,; para 7(K) for initial appointment the age prescribed was “not less than 18 years or more than 35 years of age”. However it was specifically stipulated therein that the said limit “may be relaxed in exceptional cases upto 45 by the competent authority as mentioned in the Delegation of Powers” said Notifications/Policy directives were neither considered by the respondents nor by the Service Tribunal. C. A.No.1184 of 2011 8 17. Appellant served the Respondent-department to the satisfaction of the authority. It is not the case of the Respondents that the appellant did not possessed the required qualification for the relevant post of Librarian and or that she did not serve the department to their satisfaction. She had applied for the advertised post giving her full particulars, including her qualification and age. Even if it is presumed that the competent authority over sighted her age, it would be deemed to have been relaxed in exercise of power vested in the Authority. There is no denial that one Shehnaz Parveen was also appointed as MIT in a school at Malir, Karachi was of 39 years of Age and no exception to her being over age was taken. If that be the case, Appellant is justified to urge that she has been discriminated. since she was issued joining letter on 14.7.2007 she joined the school at Risalpur on 1.8.2007 as required. At the time of joining she submitted the age relaxation certificate at the time of joining the School, such certificate to such effect was placed on record (page-59). 18. Under these facts and circumstances a right had come to vest in the appellant on issuance of appointment letter and more so after joining the service. In the case of Ghulam Murtaza v. Federation of Pakistan (2011 PLC (CS) 709) passed by learned Division Bench of Sindh High Court placing reliance on the case of Jabbar Malik v. Province of Sindh and others, last mention judgment was also upheld by this Court in Civil Petition No.426-K to 436-K of 2008, it was held that once a person is appointed after fulfilling all the codal formalities, appointment letter is issued, it was held that a vested right is created and appointment letter could not be withdrawn. Similar view was taken in the earlier decision of the same Court by another learned Bench C. A.No.1184 of 2011 9 reported as Muhammad Farooq m Memon v Government of Sindh (1986 CLC 1482). 19. As noted, above, general benefit of age relaxation extended to the employees of the Federal Government across board and extend to all departments under the Federal government pursuant to any policy decision cannot be denied on the assumption that particular department is not bound by such decision as it has its own rule. Such course is dangerous and amounts to challenge the authority of Federal Government, which course is not approved. Nothing was brought on record to show that such directive/policy decision expressed through Memorandums/ Notifications were not applicable to the respondents. Age relaxation of upper age limit for the direct recruitment to the advertised Post (of Librarian BPS-09) in the Directorate of Education in GHQ, which is also under the Federal Government, has not been denied by the respondents such benefit cannot be denied without any justifiable reason, which regretfully was not brought to the notice of this Court. 20. Once a right is accrued to the appellant by appointment letters issued after complying with all the codal formalities could not be taken away on mere assumption and or supposition and or whims and fancy of any executive functionary. Such right once vests, cannot be destroyed or withdrawn as legal bar would come into play under the well doctrine of locus poenitentiae, well recognized and entrenched in our jurisprudence (One may refer to Director, Social Welfare, NWFP, Peshawar v. Sadullah Khan (1996 SCMR 1350). C. A.No.1184 of 2011 10 21. In view of the forgoing reasons impugned judgment of Federal Service Tribunal (FST) dated 14.01.2011 is set aside and Civil Appeal is allowed in following terms: - (i). Appellant shall be given joining within one month from date of receipt of copy of this judgment. (ii). Seniority will be counted from the date of appointment letter dated 14.07.2007. (iii). However, no back benefit will be extended to the appellant for the period she remained out of office one month from the date of this order. Judge Judge Judge Islamabad, the 11th July, 2014 Not approved for reporting Sarfraz Ahmad/*

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SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed Mr. Justice Qazi Faez Isa Mr. Justice Yahya Afridi CIVIL APPEAL NO.1189 OF 2014 [on appeal against the Judgment dated 19.03.2014 passed by the Lahore High Court, Lahore, in W.P.No.21698 of 2011] Habib Bank Limited …Appellant(s) Versus Gulzar Khan & others …Respondent(s) For the Appellant(s) : Mr. Faisal Mehmood Ghani, ASC For the Respondent(s) : Mr. Zulfiqar Khalid Maluka, ASC Date of Hearing : 11.04.2019 JUDGMENT GULZAR AHMED, J.— This appeal is by leave of the Court dated 10.09.2014. Brief facts of the matter are that respondent No.1 (the respondent), who was working as an Officer Grade-II (OG-II) and Manager HBL, Sharifabad Branch, District Jhang, allegedly mishandled the bank funds. Show-cause notice was issued to the respondent, who filed its reply. Thereafter, a regular inquiry was conducted against the respondent in which he was found guilty of the commission of said offence. Second show-cause notice dated 20.11.2006 was issued to the respondent and thereafter vide letter dated 26.06.2007, a major penalty of compulsory retirement from service was imposed on him. The respondent then filed Grievance Petition in Punjab Labour Court No.5, Sargodha Camp at Jhang, praying for his reinstatement with all back benefits. The appellant C.A.No.1189 of 2014.doc - 2 - contested the said Grievance Petition of the respondent by filing its written statement in which one of the objections taken was about the maintainability of the Grievance Petition on the basis that he was not a ‘workman’ for that he was employed as OG-II and Manager of the branch. The Labour Court, after full trial, vide its order dated 23.02.2009 allowed Grievance Petition filed by the respondent. On appeal, the Punjab Labour Appellate Tribunal (the Tribunal), after hearing both parties, allowed the appeal vide judgment dated 08.07.2011, by setting aside the order of the Labour Court. The respondent, however, challenged judgment of the Tribunal by filing Writ Petition No.21698 of 2011 before the Lahore High Court, Lahore. Such Writ Petition of the respondent was dismissed in limine vide order dated 30.09.2011 passed by the learned Judge in Chambers of the Lahore High Court, Lahore. The respondent approached this Court by filing Civil Petition No.1965-L of 2011, wherein order dated 20.12.2012 was passed remanding the Writ Petition to the High Court for decision afresh. Pursuant to the remand order, the learned Judge in Chamber of the Lahore High Court, Lahore, passed the impugned order dated 19.03.2014 and while allowing the Writ Petition of the respondent the matter was remanded to the Tribunal for decision of the controversy on merits. 2. Mr. Faisal Mehmood Ghani, learned ASC for the appellant, at the outset, has contended that the Tribunal in its judgment has considered all relevant evidence as well as the case law and thereafter concluded that the respondent was not a ‘workman’ and thus the order of the Labour Court was set-aside. C.A.No.1189 of 2014.doc - 3 - He further contended that the High Court, in the impugned judgment, has dealt with the question of respondent being a ‘workman’ or not, and has given a finding that he is a ‘workman’. He next contended that the evidence, on record, amply demonstrated that the respondent, who was employed as OG-II and Manager of the branch was not a ‘workman’ and thus the Labour Court could not have exercised jurisdiction of entertaining his Grievance Petition. He contended that the High Court, by way of impugned judgment, had misread the evidence available on record so also the legal position pronounced by this Court and have thus reached the conclusion that the respondent is a ‘workman’, which is not sustainable by law. 3. Mr. Zulfiqar Khalid Maluka, learned ASC, on the other hand, has contended that by the impugned judgment the High Court has merely remanded the matter to the Tribunal and thus the remand order could not have been challenged by the appellant. He conceded that the High Court while remanding the matter, by the impugned judgment, has given a specific finding that the respondent is a ‘workman’ and thus his Grievance Petition before the Labour Court was maintainable and the matter was remanded only for decision on merits by the Tribunal. Learned ASC further contended that the evidence on record so also the legal position amply established that the respondent was a ‘workman’ and in this regard supported the impugned judgment of the High Court. 4. We have considered the submissions of learned ASC for the parties and have also gone through the record with their assistance. The foremost question is as to whether jurisdiction C.A.No.1189 of 2014.doc - 4 - was available to the Labour Court to adjudicate and decide the matter and once it is established that the Labour Court had the jurisdiction, then the Labour Appeal before the Tribunal, as a consequence, would be maintainable and decided on its own merits. The history of this case shows that the Labour Court has already dealt with the matter at full length and passed its order. Thereafter, the matter has been dealt with by the Tribunal, the High Court and then by this Court, when it was remanded to the High Court to decide the Writ Petition filed by the respondent afresh. In our view, where this Court, while remanding the matter to the High Court, has directed to decide the matter afresh, perhaps such direction of this Court did not provide enough room to the High Court to further remand the matter to the Tribunal for deciding the same on merits. In our view, in terms of the order passed by this Court, the High Court ought to have decided the case afresh not only on the point of jurisdiction but also on merits. Be that as it may, as the High Court has decided only the question of jurisdiction of the Labour Court by determining the respondent to be a ‘workman’, so we are mainly concerned with this question, which has been elaborately argued by the learned ASC appearing for the parties. So far as the evidence available on record is concerned, we have noted that the respondent has recorded his evidence as PW-1 before the Labour Court where he admitted that on 01.07.2005 he was promoted as OG-II by the appellant and that he worked as Manager of Sharifabad branch of the appellant-bank for one year and three months. He also admitted that he was drawing a salary of Rs.18,324/- plus other allowances, as C.A.No.1189 of 2014.doc - 5 - admissible to him. He further admitted, in his evidence, that his duty included issuing of drafts, issuing of cheques, opening of accounts, closing of cash with signature of second officer, depositing of cash in the strong room and locking the same. Such admission by the respondent, in his evidence, amply demonstrated that the nature of work being performed by the respondent as OG- II and Manager of the branch was not of a clerical nature and did not fall within the ambit of term ‘workman’ as defined in the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 so also under the Industrial Relations Ordinance, 2002. It is not necessary for us to give here the definition of the term ‘workman’ in these two laws for that besides the evidence available on record, the legal aspect is also clinched by various judgments pronounced by this Court in relation to the bank employees, who were employed as OG-II and Manager of the branch. We may note that though the respondent did not have Power of Attorney with him, he was still Manager of the branch and all affairs of the branch were under his management and control, even the entire cash and record of the bank relating to the branch as well as all communications of the branch were also under his supervision, upon which he was required to take decisions as to how the same has to be dealt with in the best interest of the appellant-bank. The term ‘Manager’ even otherwise is defined in the Black’s Law Dictionary, 9th Edition, as follows: “A person who administers or supervises the affairs of a business, office, or other organization” 5. Learned ASC for the appellant has cited a number of cases on the point as to whether the respondent being OG-II and C.A.No.1189 of 2014.doc - 6 - Manager of the branch could be considered as a ‘workman’ and in this regard has referred to the case of National Bank of Pakistan v. Punjab Labour court No.5, Faisalabad & 2 others [1993 SCMR 672], where this Court dealt with the case of OG-II of the National Bank of Pakistan, who had filed Grievance Petition before the Labour Court. The bank has taken an objection that OG-II was not a ‘workman’ as he was predominantly performing managerial and administrative work. This Court dealt with the issue as follows: “11. … … Admittedly, respondent No.3 was drawing, according to his own showing, salary of Rs.1,150 per month. He was an officer of Grade-II and, therefore, if he was employed at the relevant time in a supervisory capacity not necessarily mainly in a managerial or administrative capacity, he would fall within the first category of clause (b) referred to hereinabove. It is a well-settled proposition of law that a person who approaches a Court on the basis of averment that he is a workman within the definition of clause (xxviii) of section 2 of the IRO, the burden of proof lies on him and not on the employer. In the present case as pointed out hereinabove, the Labour Court has not examined the above question, but the Tribunal relied upon the statement of respondent No.3 in his examination-in-chief to the effect that “I was Second Officer in the branch when I was dismissed. I was not Manager at the relevant time. My job was of clerical nature. I was not entrusted with managerial or supervisory job.” The Tribunal was also influenced by the factum that no cross-examination was directed in this regard. In our view, simpliciter statement of respondent No.3 that “I was not performing supervisory job”, but at the same time, admitting the factum that he was Grade-II Officer, was not sufficient for discharging the above burden of proof. The Tribunal as well as the learned Judge in chamber wrongly placed burden of proof on the appellant by holding that they had failed to produce the evidence to show the duties of respondent No.3. In our view, it was for respondent No.3 to have stated what were the duties of a Grade-II Officer. It is also incorrect to conclude that the appellant had not directed any cross-examination on the above question. In the cross-examination, it was suggested that respondent No.3 was performing the duties of Manager, which suggestion was denied by him.” After examining the case law on the point, this Court ultimately reached at the following conclusion: “15. … … The question, whether a person is a workman within the purview of clause (xxviii) of section 2 of the IRO, can be determined not on the basis of the designation of his C.A.No.1189 of 2014.doc - 7 - post, but on the basis of the duties which he was performing. In the present case, we have already held that burden of proof that respondent No.3 was a workman, was on him, which he failed to discharge.” Further, in the case of National Bank of Pakistan & another v. Anwar Shah & others [2015 SCMR 434], this Court was confronted with the question as to whether OG-I, OG-II and OG-III were workmen and could become members of the employee’s union and participate in such union election process, and observed as follows: “8. … … The 'worker' and the 'workman' defined in the Act mean person not falling within the definition of 'employer' who is employed as a supervisor or as an apprentice but does not include a person who is employed mainly in managerial or administrative capacity. On the other hand, the 'employer' as defined in the Act includes a person who is proprietor, director, manager, secretary, agent or officer or person concerned with the management of the affairs of the establishment. The term 'officer' is specifically mentioned in the definition of term 'employer'. However, as has been noted from the case-law cited by the learned counsel for the parties, the Courts have not considered the designation of a person to be a factor determining his status of employment in an establishment to be that of an officer or a workman rather the Court has always considered the nature of duties and functions of a person to be the factor which will determine his status as to whether he is a workman or not. In this respect, we may refer to the case of National Bank of Pakistan v. Punjab Labour Court No.5, Faisalabad (1993 SCMR 672), which was a case relating to an Officer Grade-I1 of NBP against whom disciplinary action was taken. He approached the Labour Court for redressal of his grievance claiming himself to be a workman. The matter came up to this Court and it was held that the designation per se is not determinative of a person being a workman rather the nature of duties and function determine his status and the burden is on him to establish that he is a workman. As the Officer Grade-II failed to discharge his burden, he was held not to be a 'workman' and his grievance petition was dismissed. The ratio of this case and also of the other cases that have been relied upon by the learned counsel for the parties is that the person who approaches a Labour Court for redressal of his grievance claiming himself to be a workman and such status of workman being denied by the employer, it becomes a bounden duty of a person who approaches the Labour forum to demonstrate through evidence that his nature of duties and functions were that of a workman and not that of a managerial or administrative capacity and that he was not an employer. Unless such categoric evidence is led by him, he will not be considered to be a workman and his grievance petition will not be maintainable before the Labour forum. It, C.A.No.1189 of 2014.doc - 8 - therefore, implies that the officer cannot be assumed to be workmen nor such can be declared on mere asking. The argument that officers Grade-I to III are performing supervisory function in itself means that this has to be established by evidence. In this view of the matter, on a solitary claim of the union no blanket declaration can be given that the Officers Grade-I to III in the establishment of NBP are workmen.” Moreover, in the case of Muslim Commercial Bank Ltd. and others v. Muhammad Shahid Mumtaz and another [2011 SCMR 1475] = [2009 PLC 281] this Court has dealt with the issue as follows: “7. In the light of the above definition, we need to examine as to whether the respondent was a workman or not. Before discussing the factual aspects of the question, we may point out that both the Courts erred in placing burden on the Bank to provide that the respondent was not a workman. This Court has already held in the case of National Bank of Pakistan v. Punjab Labour Court No.5 (supra) that a person, who approaches a Court on the basis of averment that he is a workman, the burden of proof lies on him and not on the employer. The respondent, was a Manager at the relevant time of the Khakwani Cloth Market Branch of the appellant- Bank. This was his second posting as Manager as he has earlier posted in the same capacity in Khiali Gate Branch, MCB, Gujranwala. The power of attorney was executed by the Bank in his favour on 20th August, 1996, four years prior to the present incident. This power of attorney was given to him on his first posting as Manager. It was duly notarized by a Notary Public and signed by the President of the Bank and attested by two Vice-Presidents of the Bank. There is no reason to doubt its authenticity and we are unable to understand as to how the trial Court had ruled out of consider the power simply on the ground that there was no evidence to show that the same was ever delivered to the respondent. In view of its notarization and execution by the most responsible official of the Bank, in the absence of any convincing evidence to the contrary, it is unbelievable that the same would have been fabricated only to counter the respondent's claim of being the workman. We have also noticed that this aspect was not discussed by the learned Judge in Chambers in the High Court. 8. The powers conferred on the respondent by the power of attorney are material for fixing his status in the context as to whether or not he was a workman. For this purpose, all the powers conferred are relevant but the most significant ones are the following:-- (2) To engage, employee, control and dismiss Clerks, Servants and others whether engaged by the said Attorney or by the Bank or otherwise. (4) To settle and adjust all average and other losses and claims under Policies of Insurance of All kinds and all other accounts and reckonings whatsoever and to compromise and compound all debts and claims whatsoever claimable by the Bank and to submit to Arbitration all C.A.No.1189 of 2014.doc - 9 - differences and disputes whatsoever. (6) To take on lease or other tenancy any land, houses, buildings for the purposes of officers or premises suitably for carrying on the said business or any of them and to build, alter and furnish any office, house or premises. (8) To make, sign, seal, execute, deliver and endorse all receipts, deeds, redemption of mortgage deeds, conveyance, transfers and instruments. (12) To draw, accept, endorse, sign and negotiate all Bills of Exchange, Dividend Warrants and any orders for payment of money in which the Bank is or may be interested or concerned and to which its endorsement or signature may be necessary or requisite. (17) AND GENERALLY to do all such acts, deeds and things not specifically mentioned hereinabove but which are necessary or expedient to carry on and manage the business of the Bank and all such other acts which are incidental to the promotion of Banking business.” 9. The above powers, particularly the one of hire and fire in para 2, sufficiently demonstrates the nature of his duties and functions as managerial and supervisory and not clerical in nature, as claimed by him.” Again, in the case of Javaid Hussain Naqi v. Member Board of Directors, MCB and others [2009 PLC 260], this Court was confronted with the question as to whether the Branch Manager of the Bank could fall within the term ‘workman’ as defined under the labour laws. Such question was dealt with by this Court as follows:- “3. The present petitioner also is a Branch Manager of Muslim Commercial Bank, performing the duties of managerial and supervisory nature. It is not in the last Branch alone but, according to para. No.3 of his grievance petition (pp.65), he has all along been working as Branch Manager at different stations since November, 1979. Learned High Court was, therefore, justified in holding, in the light of the above referred judgment of this Court, that the petitioner was not a "workman"' and hence the Labour Court lacked jurisdiction to entertain his petition under section 25-A of the Industrial Relations Ordinance, 1969. 4. The arguments of the learned counsel that the branch in which the petitioner was last posted, was a small branch, is altogether out of context. The size of a branch has no nexus with the nature of duties of the Manager, which always remain of managerial and supervisory nature. It would be ridiculous to observe that the Manager of a large branch would not be a "workman" and that of a small branch would be. There being no force in the petition, it is hereby dismissed and leave to appeal refused.” C.A.No.1189 of 2014.doc - 10 - 6. On the other hand, learned ASC for the respondent has refereed to the case of Mahmood Hussain Larik and others v. Muslim Commercial Bank Limited [2009 SCMR 857]. This case was heard by a three-member bench of this Court where two of the members who were in majority, inter alia, dealt with the question as to whether OG-III in the bank could be considered as a ‘workman’ or not and came to the conclusion that such officers, in view of the nature of work performed by them were not ‘workman’. However, his lordship Sabihuddin Ahmed, J., one of the members of the said bench gave his dissenting note. Learned ASC for the respondent has relied upon this dissenting note to support his case. Reliance of the learned ASC for the respondent on the dissenting note against the majority view, cannot give a foundation to this Court to base its decision in considering as to what was the decision of this Court in the case, the Court will always consider the majority view that prevailed in the case and not the dissenting note given by one of the judges of the bench. This is well established law and it is unnecessary to cite any precedent for it. 7. The very evidence which the respondent recorded before the Labour Court, as read by us, did not refer to any function of the respondent that could be considered to be mainly of manual or clerical nature rather the functions which he performed and also stated in his evidence were of OG-II and Manager of the branch and those were mainly of managerial and supervisory nature and under no circumstance could they be considered to be that of a ‘workman’ more particularly, when the respondent in his evidence has stated that he was issuing drafts and cheques, C.A.No.1189 of 2014.doc - 11 - opening of accounts, closing of cash with signature of second officer, depositing of cash in strong room and locking the same are the those which need independent application of mind and making of decisions for that the drafts and cheques are not issued in routine when they are also to be signed. Similarly, opening of bank accounts, depositing of cash in the strong room and locking the same are the functions which are mainly of the Manager and not that of a ‘workman’. Further, during arguments, provision of Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, was also referred to, which provides as follows: “9(1) Where a customer or financial institution commits a default in fulfilment of any obligation with regard to any finance, the financial institution or, as the case may be, the customer, may institute a suit in the Banking Court by presenting a plaint which shall be verified on oath, in the case of a financial institution by the Branch Manager or such other officer of the financial institution as may be duly authorized in this behalf by power of attorney or otherwise”. This provision shows that the branch Manager of the bank is competent to file a suit on behalf of the bank and the person, who is authorized by law to file a suit on behalf of a bank in the Court of law could not be considered to be a ‘workman’. In this regard, reference may further be made to the provision of Rule 1 Order XXIX CPC, which is as follows: “Subscription and verification of pleading: In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case.” 8. The cumulative effect of the evidence available on record, judgments of this Court referred to above, the provision of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and Rule 1 Order XXIX CPC amply establish that the respondent, C.A.No.1189 of 2014.doc - 12 - as an officer OG-II and Manager of the branch, was not a ‘workman’. Thus, the Labour Court did not have jurisdiction to entertain his Grievance Petition, which on this very ground was liable to be dismissed. Having come to conclusion that the Labour Court did not have jurisdiction in the matter, thus, the Tribunal also lacked jurisdiction to deal with the matter and, therefore, the very exercise of remanding the case to the Tribunal for deciding the same on merits will be a futile exercise. 9. For all the above reasons, we are of the considered view that the impugned judgment was not in consonance with the evidence available on record, the law pronounced by this Court and other legal provisions cited above, thus the same is not sustainable. Consequently, the appeal is allowed and the impugned judgment dated 19.03.2014 passed by the High Court is set-aside. JUDGE Bench-II ISLAMABAD 11.04.2019 APPROVED FOR REPORTING JUDGE *Hashmi* JUDGE C.A.No.1189 of 2014.doc - 13 - In the very evidence which the respondent recorded before the Labour Court, as read by us, did not at all refer to the work that he actually performed in that Bank as OG-II and Manager of the branch was predominantly of manual or clerical nature, which is the requirement under the law for holding a person to be as ‘workman’ rather as noted above, the function that he has admitted to be performing as OG-II and branch Manager predominantly shows that he was performing work that of an officer and manager which under no circumstance to be considered to that of a ‘workman’.

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE FAISAL ARAB MR. JUSTICE MUNIB AKHTAR CIVIL APPEAL NO. 1189 OF 2017 (On appeal against the judgment dated 13.03.2017 passed by the High Court of Sindh, Karachi in C.P. No. D-4291/2015) Syeda Sakina Riaz … Appellant VERSUS Federation of Pakistan and another … Respondents For the Appellant: Syed Fiaz Ahmed Shah, ASC For the Respondent (1): Mr. Sohail Mahmood, DAG For the Respondent (2): Mr. Shoaib M. Ashraf, ASC Date of Hearing: 22.05.2018 JUDGMENT FAISAL ARAB, J.- When appellant’s late husband died in a fatal car accident on 11.01.2012 he was working as an Assistant Controller in BPS-18 in the examination department of the University of Karachi. By then he had served the university only for about five years so his tenure in office was well short of the minimum qualifying service which would have made her widow eligible to claim family pension under the University of Karachi Service Pension Statute, 1972. To seek family pension, the appellant sought recourse to the Prime Minister’s Family Assistance Package notification No.7/40/2005-E-2 dated 13.06.2006 which inter alia granted a lump-sum payment as well 2 Civil Appeal No.1189/2017 as enhanced pensionary benefits to the families of the federal government employees who die while in service. This package was made applicable to the families of the university’s employees as well by virtue of its adoption by the syndicate of the university on 15.01.2008. The appellant was though paid the lump-sum grant of Rs.800,000/- as provided in the package but the claim for grant of family pension was denied for the reason that her husband had not put in the minimum qualifying service of ten years as envisaged under Section 26 of the University of Karachi Service Pension Statute, 1972. 2. Having failed to seek family pension on the basis of the family assistance package, the appellant invoked the constitutional jurisdiction of the High Court of Sindh seeking directions to the University to grant her family pension. Such relief was not only sought under the family assistance package that was in force at the time of her husband’s death but in terms of family assistance package that was subsequently revised by the federal government on 20.10.2014. The university contested her claim primarily on the ground that her husband had not put in the minimum of ten year qualifying service to make his service pensionable so she was not entitled to claim any concession towards pension under the family assistance package. The appellant’s petition was dismissed. The reasons that prevailed with the High Court in denying the relief to the appellant was that her petition was not maintainable as the university’s pension law was not statutory and that her deceased husband had not put in minimum qualifying service as envisaged 3 Civil Appeal No.1189/2017 under Section 26 of University of Karachi Service Pension Statute, 1972 in order to become entitled for family pension. 3. Right to claim pension is a right connected with the tenure of service which under the applicable pension rules has to be served by an employee in order to make him eligible for pension. Where a deceased employee has put in pensionable service, only then his family becomes entitled to pension. So in order to claim pension, a minimum qualifying service is the threshold that has to be first crossed which would then entitle an employee or his family after his death to claim pension. The right to claim pension cannot be equated with an insurance policy that becomes enforceable due to an event that occurs even before its maturity date as right to claim pension is always attached to a specified term of office which an employee has to put in i.e. it is a benefit which is earned by an employee as a result of giving service to an employer for a specified number of years. Employees do die before completing qualifying length of service. It has been happening in the past and is likely to happen in the future. Unfortunately, those who do not cross the threshold of minimum qualifying service, their service falls short of being regarded as pensionable service. It’s very disappointing for the families of the employees who die while in service without completing minimum qualifying service. Nevertheless, this principle of completing minimum qualifying service is ingrained in every law that grants pension to the employees or after their death to their families. Thus this principle is based on ‘quid pro quo’, which mandates that an employee must put in minimum 4 Civil Appeal No.1189/2017 qualifying years of service before he becomes entitled to claim pensionary benefits. 4. The above discussed principle is clearly depicted in the provisions of the University of Karachi Service Pension Statute, 1972 which provides four categories or classes of pension. These have been described as (i) Superannuation Pension which becomes payable on attaining 60 years of age; (ii) Retiring Pension, where an employee opts to retire after putting in 25 years qualifying service or such less time as has been prescribed for any special class of employees or is compulsorily retired by the authority competent to remove him from service; (iii) Compensation Pension which is granted to an employee on account of abolition of his permanent post or on account of change in the nature of duties of his post and who has not opted to accept another post and (iv) Invalid Pension where an employee on account of bodily or mental infirmity has been permanently incapacitated from rendering further service. The death of an employee before his retirement can be equated with this last category i.e. Invalid Pension. For all these four categories of pension, the condition precedent is rendition of minimum length of service. It is for this reason that Section 26 of the University of Karachi Service Pension Statute, 1972 proceeds by stating “After a qualifying service of not less than 10 years, full superannuation, retiring, invalid or compensation pension may be granted…..” Therefore, rendering of qualifying service is a prerequisite for claiming pension. Unless an employee of the university renders minimum qualifying service his family upon his death cannot become entitled to claim family pension or any other 5 Civil Appeal No.1189/2017 privilege that is attached with pensionary rights. The family assistance package, in so far as it relates to pension, has only enhanced the quantum of family pension that is payable under the law of pension. It cannot be read to convert a non-pensionable service into a pensionable service. 5. In the present case admittedly the late husband of the appellant had put in only about five years of service, well short of rendering qualifying length of service which only would have entitled his widow to claim any concession granted towards the quantum of pension. As stated earlier, only where a person renders qualifying service under pension rules that he becomes eligible for any further concession that may be granted towards pension from time to time. Thus the University’s family assistance package, in so far as it relates to enhanced pensionary benefits, was payable to the family of such deceased employee who had rendered minimum qualifying service in his lifetime under the provisions of the University of Karachi Service Pension Statute, 1972. This appeal, therefore, fails, which is hereby dismissed. JUDGE JUDGE JUDGE Islamabad, the Announced on 01.06.2018 by Hon’ble Mr. Justice Faisal Arab Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Sardar Tariq Masood Mr. Justice Tariq Parvez Civil Appeal No. 118 of 2016 (Against the judgment dated 09.12.2015 passed by the Islamabad High Court, Islamabad in Writ Petition No. 3980 of 2015) Abdul Hameed Dogar …Appellant versus Federal Government through the Secretary, Ministry of Interior and two others …Respondents For the appellant: Syed Iftikhar Hussain Gilani, Sr. ASC For respondent No. 1: Mr. Salman Aslam Butt, Attorney- General for Pakistan For respondent No. 2: Mr. Farogh Nasim, ASC For respondent No. 3: Nemo. Dates of hearing: 23.02.2016 & 24.02.2016 JUDGMENT Asif Saeed Khan Khosa, J.: A criminal case against respondent No. 2 namely General (Retd.) Pervez Musharraf on the charge of committing high treason is presently pending trial before a Special Court constituted under the Criminal Law Amendment (Special Court) Act, 1976 and, therefore, we shall be circumspect in what we observe in the present judgment lest any observation made by us may prejudice the trial of the said case and shall endeavor to confine our comments mainly to what has already Civil Appeal No. 118 of 2016 2 been said or declared on the subject by different courts of the country, including this Court, and the legal position relevant to the issues raised through the present appeal. 2. During the pendency of his trial before the Special Court respondent No. 2 had filed a miscellaneous application seeking a direction to the Federal Government to investigate all those persons who had aided or abetted the said respondent in allegedly committing the crime in issue and to submit an amended or additional statement as well as a statement of formal charges before the Special Court against such other persons in terms of sections 5(1) and 5(3)(a) of the Criminal Law Amendment (Special Court) Act, 1976. On 21.11.2014 the said application filed by respondent No. 2 was disposed of by the Special Court through a majority decision and a direction was issued to the Federal Government to treat Mr. Shaukat Aziz and Mr. Zahid Hamid, who held the offices of the Prime Minister and the Federal Minister for Law on 03.11.2007 respectively, and the present appellant namely Mr. Abdul Hameed Dogar, a Judge of this Court on the said date, as co-accused of respondent No. 2 and to submit an amended or additional statement as well as a statement of formal charges in terms of the above mentioned provisions of the Criminal Law Amendment (Special Court) Act, 1976 against them. The present appellant challenged the said order passed by the Special Court before the Islamabad High Court, Islamabad through Writ Petition No. 5010 of 2014 and the said writ petition was heard by a learned Division Bench of that Court along with some other writ petitions and Intra-Court Appeals. During the pendency of those matters a consensus emerged between all the parties, including the Federal Government, that the role of “any person” as an aider or abettor of respondent No. 2 may be properly investigated “at large” and that all such persons may be provided “full opportunity of hearing” by the investigating agency. On the basis of such consensus the learned Division Bench of the Islamabad High Court, Islamabad set aside the impugned order dated 21.11.2014 passed by the Special Court and disposed of all the matters, including the writ Civil Appeal No. 118 of 2016 3 petition filed by the present appellant, on 10.11.2015 with a clarification that “The parties to the present litigation shall not be prejudiced by the impugned order or any adverse view drawn therein. Likewise, I.O, Investigating Agency or JIT whatever the case may be shall not be influenced by such observations made in the impugned order.” 3. The ensuing date of hearing before the Special Court was 27.11.2015 and on that date the Special Court passed an order which has generated the controversy that has been brought before this Court through the present appeal. The relevant portions of the order passed by the Special Court on 27.11.2015 are reproduced below: “3. Mr. Muhammad Akram Sheikh, while appearing on behalf of the prosecution stated before us in clear and unequivocal terms that fresh investigation in this case has to take place. ------ 4. From the contents of the judgment it appears that all the parties gave consent before the Islamabad High Court that the matter be reinvestigated as the investigation that was carried out earlier was not conclusive and hence defective. ------- --------------------- 6. Let the process of the investigation commence. The Investigation Team shall record statements of Mr. Pervaiz Musharraf, Mr. Justice Abdul Hameed Dogar, Mr. Shoukat Aziz and Mr. Zahid Hamid afresh. -------” 4. The appellant assailed the said order passed by the Special Court before the Islamabad High Court, Islamabad through Writ Petition No. 3980 of 2015 but the said writ petition was dismissed by the said Court in limine on 09.12.2015. Hence, the present appeal by leave of this Court granted on 27.01.2016. 5. We have heard the learned counsel for the parties at some length and have perused the relevant record of the case with their assistance. It has been pointed out by the learned counsel for the appellant that it was for the first time that through the order dated 21.11.2014 the Special Court had introduced the appellant as an accused person in the case of high treason which order had Civil Appeal No. 118 of 2016 4 subsequently been set aside by the Islamabad High Court, Islamabad on 10.11.2015 but despite setting aside of its earlier order dated 21.11.2014 the Special Court had reintroduced the appellant as a suspect in the said criminal case through its order dated 27.11.2015 and a writ petition filed by the appellant against the said order had been dismissed by the Islamabad High Court, Islamabad on 09.12.2015. It has been argued by the learned counsel for the appellant that after setting aside of its order dated 21.11.2014 the Special Court was left with no basis or material whatsoever for reintroducing the appellant as a suspect in the relevant case for the purposes of investigation qua his involvement. It has also been contended by the learned counsel for the appellant that in a number of judgments handed down by this Court as well as by some High Courts it had categorically been held and declared that it was General (Retd.) Pervez Musharraf alone who was responsible for imposition of emergency in the country on November 03, 2007 and that introduction of the appellant as a suspect in the said matter by the Special Court was not only purely speculative in nature but was also based upon no material whatsoever. In support of this contention the learned counsel for the appellant has placed reliance upon the cases of Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others (PLD 2009 SC 879), Gen. (R.) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another (PLD 2014 SC 585) and Moulvi Iqbal Haider and others v. Federation of Pakistan through Secretary M/o Law and Justice and others (2013 SCMR 1683). He has further argued that the Special Court had no jurisdiction to add the appellant as a co-accused of respondent No. 2 in the trial of the relevant criminal case instituted by the Federal Government or to direct that the appellant was to be associated with any fresh investigation of the said case to be conducted by an investigating agency. The learned counsel for respondent No. 2 started his arguments by contesting this appeal with reference to some parts of the judgments rendered by this Court in the cases of Justice Hasnat Ahmed Khan and others v. Federation of Civil Appeal No. 118 of 2016 5 Pakistan/State (PLD 2011 SC 680), Gen. (R.) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another (PLD 2014 SC 585) and Ghulam Abbas Niazi v. Federation of Pakistan and others (PLD 2009 SC 866) but he has finally submitted that he has no objection to acceptance of this appeal, setting aside of the impugned order passed by the Islamabad High Court, Islamabad on 09.12.2015 and removal of the names of the appellant and two others from the impugned order passed by the Special Court on 27.11.2015. He has, however, prayed that this Court may clarify that the Federal Government may associate any person with the fresh investigation being conducted into the matter of the alleged commission of high treason. The learned Attorney-General for Pakistan has referred to the provisions of section 5 of the Criminal Law Amendment (Special Court) Act, 1976 and has maintained that in “a case” regarding commission of high treason it lies within the exclusive jurisdiction of the Federal Government to determine as to against whom a complaint is to be forwarded to the Special Court for trial, who is to be included in the list of accused persons to be tried in “the case”, what are to be the charges against the persons to be tried and who would be the witnesses to be produced in support of the charges. He has gone on to submit that the Special Court has no jurisdiction to introduce any person to be tried in such a case or to require any person to be associated with investigation of such a case. Upon a query made by the Court the learned Attorney-General has categorically stated that the Federal Government firmly stands by its written comments submitted before the Islamabad High Court, Islamabad in connection with the appellant’s Writ Petition No. 5010 of 2014. In the said comments the Federal Government had clearly maintained that the Special Court had no jurisdiction to name the appellant and two others as co-accused of respondent No. 2 and that “This will tend to defeat the ends of justice and trial against the only accused and beneficiary of the Emergency”. 6. After hearing the learned counsel for the parties and going through the record of the case we have straightaway observed that Civil Appeal No. 118 of 2016 6 the confusion prevailing with the Special Court as well as the Islamabad High Court, Islamabad over the issue of aiders and abettors of respondent No. 2 in the alleged commission of high treason by him would have been removed or would have become easier to resolve if the relevant extracts of different judgments handed down by this Court and the High Court of Sindh, Karachi read out before us by the learned counsel for the appellant and reproduced in the following paragraphs had been adverted to by those courts. 7. In the case of Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others (PLD 2009 SC 879) a 14-member Bench of this Court had categorically held on 31.07.2009 as follows: “80. Seen in the above perspective, the actions of General Pervez Musharraf dated 3rd November, 2007 were the result of his apprehensions regarding the decision of Wajihuddin Ahmed's case and his resultant disqualification to contest the election of President. Therefore, it could not be said that the said actions were taken for the welfare of the people. Clearly, the same were taken by him in his own interest and for illegal and unlawful personal gain of maneuvering another term in office of President, therefore, the same were mala fide as well. The statement made in Proclamation of Emergency that the situation had been reviewed in meetings with the Prime Minister, Governors of all the four Provinces, and with Chairman, Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice Chief of Army Staff and Corps Commanders of the Pakistan Army, and emergency was proclaimed in pursuance of the deliberations and decisions of the said meetings, was incorrect. The Proclamation of Emergency emanated from his person, which was apparent from the words "I, General Pervez Musharraf...." used in it.” (Underlining and bold letters have been supplied for emphasis) The said portion of the judgment rendered in the case of Sindh High Court Bar Association was reproduced and reiterated by another 14-member Bench of this Court in the later case of Gen. (R.) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another (PLD 2014 SC 585) decided on 30.01.2014. Civil Appeal No. 118 of 2016 7 8. In the above mentioned case of Gen. (R.) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another (PLD 2014 SC 585) decided by a 14-member Bench of this Court on 30.01.2014 Jawwad S. Khawaja, J. had, in his concurring separate opinion, concluded as follows regarding the persons placed in the appellant’s position: “15. Nowhere in the above quoted texts is the former Chief Justice mentioned as the cause for declaring the emergency and he was certainly not the only one affected by it. In a narrow context, all judges of the superior courts in office on November 3rd, 2007 were directly affected by the Proclamation of Emergency. The majority of these judges suffered from this act, as they were unlawfully prevented from performing the duties of their Constitutional office. The remaining judges in the minority who decided to take the unconstitutional oath of office, on the other hand, could be perceived as beneficiaries of the aforesaid act of the petitioner. -------” (Underlining and bold letters have been supplied for emphasis) The difference between an aider/abettor and a beneficiary is quite obvious. A person aiding or abetting another in an act is privy to the act itself but a beneficiary takes benefit or advantage of the act after the event and he may not necessarily be a party to the act itself. 9. In the case of Sindh High Court Bar Association (supra) this Court had concluded and declared that emergency had been imposed by respondent No. 2 on 03.11.2007 while acting on his own and in his personal interest. The following extracts from the judgment delivered in that case are relevant in this regard: “60. From the contents of the letter of the Prime Minister, it cannot be said that he issued any direction to the Armed Forces in terms of Article 245 of the Constitution to act in aid of the civil power, nor the actions of General Pervez Musharraf of 3rd November, 2007 could be said to have been taken or done while acting in aid of the civil power. Even otherwise, the letter was addressed to the President of Pakistan and not to the Chief of Army Staff. But for the sake of argument, it may be stated that even if the letter was addressed to the Chief of Army Staff, it could not be construed to give to the latter any power to take the kind of steps that he took in pursuance of the aforesaid letter. ------- In the instant case too, no power vested in the Chief of Army Staff General Pervez Musharraf under the Constitution and the law to issue Proclamation of Emergency and PCO No. 1 of 2007 on a letter of the Prime Minister written to the President bringing to his notice the national security situation, which was worsening on account of terrorism, extremism, militancy, suicide attacks and Civil Appeal No. 118 of 2016 8 the erosion of trichotomy as a result of suo motu actions being taken by some members of the superior judiciary. If the President, on receipt of such a letter, wanted to take any action including imposition of emergency, the same would have been in terms of constitutional provisions on emergency. Nowhere the Prime Minister asked the President to take the actions that he took on 3rd November, 2007. In any case, it was not an advice tendered by the Prime Minister in terms of Article 48 of the Constitution. Neither on receipt of such a letter, could the President have authorized Chief of Army Staff to take that kind of steps. The Constitution does not empower the President to issue an Oath Order, which he did in pursuance of Proclamation of Emergency and PCO No.1 of 2007. Instead of upholding the Constitution in terms of the oath taken by him as member of the Armed Forces he violated the Constitution, suspended it, assumed to himself unconstitutional and illegal powers and imposed upon the country unconstitutional and illegal emergency and PCO No. 1 of 2007. Likewise, in terms of his oath as President of Pakistan, instead of preserving, protecting and defending the Constitution, and performing his functions, honestly, to the best of his ability, faithfully in accordance with the Constitution and the law, and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of Pakistan, issued Oath Order, 2007, illegally assumed to himself power to remove Judges of the superior Courts in violation of Articles 2A and 209 of the Constitution, which respectively required the securing of independence of judiciary and the guaranteeing of the tenure of the Judges of the Supreme Court and the High Courts. --------------------- 80. Seen in the above perspective, the actions of General Pervez Musharraf dated 3rd November, 2007 were the result of his apprehensions regarding the decision of Wajihuddin Ahmed's case and his resultant disqualification to contest the election of President. Therefore, it could not be said that the said actions were taken for the welfare of the people. Clearly, the same were taken by him in his own interest and for illegal and unlawful personal gain of maneuvering another term in office of President, therefore, the same were mala fide as well. The statement made in Proclamation of Emergency that the situation had been reviewed in meetings with the Prime Minister, Governors of all the four Provinces, and with Chairman, Joint Chiefs of Staff Committee, Chiefs of the Armed Forces, Vice Chief of Army Staff and Corps Commanders of the Pakistan Army, and emergency was proclaimed in pursuance of the deliberations and decisions of the said meetings, was incorrect. The Proclamation of Emergency emanated from his person, which was apparent from the words "I, General Pervez Musharraf...." used in it. --------------------- 82. As to the constitutionality and the legality of the acts/actions of 3rd November, 2007, General Pervez Musharraf himself, in an interview to a foreign TV news channel (BBC) admitted that he had taken unconstitutional steps. Relevant portion from his interview, as reported in the Daily DAWN of 18th November, 2007 is reproduced below: The daily DAWN, Islamabad, 18th November, 2007 NO ILLEGAL STEP TAKEN BEFORE NOV. PRESIDENT: Civil Appeal No. 118 of 2016 9 "Before March, I was very good. Suddenly did I go mad after March or suddenly my personality changed, am I Doctor Jekyll and Mister Hyde or what is it?" He said. "Am I such a person? "Please go into the details, the causes. What I am doing? Have I done anything unconstitutional, yes, I did it on Nov. 3. "Did I do it before? Not once." --------------------- 85. In the light of the above discussion, the actions of General Pervez Musharraf dated 3rd November, 2007, viz., Proclamation of Emergency, PCO No. 1 of 2007 and Oath Order, 2007, etc. are held and declared to be unconstitutional, illegal, mala fide and void ab initio. ------- --------------------- 176. It has already been held that Abdul Hameed Dogar, J, and other Judges who made oath, or were appointed, in violation of the order dated 3rd November, 2007 passed by a seven-member Bench of this Court in Wajihuddin Ahmed's case were not even de facto Judges, inter alia, on the ground that the actions taken by General Pervez Musharraf from 3rd November, 2007 to 15th December, 2007, including the appointments and/or oaths of such Judges, were mala fide as the same were taken by him for his own benefit, and did not fall within the scope of his authority under the Constitution and the law and in any case, they were not taken in the interest of the State, or for the welfare of the people.” (Underlining and bold letters have been supplied for emphasis) In his separate and concurring opinion recorded in that case Jawwad S. Khawaja, J. had observed as under: “3. For reasons which have been spelt out in the main judgment, there can be no doubt at all that the aforesaid actions of 3rd November, 2007 were un-Constitutional. It is for this obvious reason that General Musharaf, lacking legitimate authority abused the office of Chief of Army Staff and relied on the physical force which had been placed under his command. -------” (Underlining and bold letters have been supplied for emphasis) After such conclusions reached and declarations made by this Court in the said case it was for the Federal Government to consider the advisability or otherwise of getting a fresh investigation conducted for tracing out or identifying the aiders and abettors of respondent No. 2 in the matter but it was surely Civil Appeal No. 118 of 2016 10 not for the Special Court or the Islamabad High Court, Islamabad to require or approve a fresh investigation for the search of such phantoms or apparitions. 10. In the subsequent case of Moulvi Iqbal Haider v. Federation of Pakistan & others (Constitution Petition No. D-454 of 2009 decided on 14.10.2010) a learned Division Bench of the High Court of Sindh, Karachi had unmincingly declared as follows: “11. ------- We are also of the opinion that the proclamation of PCO dated 03.11.2007, promulgated by Rtd. General Pervaiz Musharraf clearly shows that certainly he is the person who is responsible for abrogation and subversion of the Constitution and is liable to be prosecuted for committing high treason. --- ----” (Underlining and bold letters have been supplied for emphasis) The said judgment passed by the High Court of Sindh, Karachi had been challenged before this Court but a 3-member Bench of this Court had disposed of the civil petition for leave to appeal filed in that regard on 03.07.2013 without interfering with the impugned judgment. A reference in this respect may be made to the case of Moulvi Iqbal Haider and others v. Federation of Pakistan through Secretary M/o Law and Justice and others (2013 SCMR 1683). Later on in the case of Gen. (R.) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another (PLD 2014 SC 585) this Court had noticed in the above mentioned context as under: “11. During the course of arguments, Raja Muhammad Ibrahim Satti admitted, on Court query, that petitioner General (R) Pervez Musharraf had a notice of the petition filed by Moulvi Iqbal Haider before the Sindh High Court through citation published in Daily Dawn and further that after dismissal of the said petition by the said Court Moulvi Iqbal Haider challenged the order before the Supreme Court in which General Musharraf was represented by him (Raja Muhammad Ibrahim Satti). The case is reported as Moulvi Iqbal Haider v. Federation of Pakistan through Ministry of Law and Justice (2013 SCMR 1683).” It is not denied that after fixing of the entire and exclusive responsibility of committing high treason upon him by the High Court of Sindh, Karachi respondent No. 2 herein had never Civil Appeal No. 118 of 2016 11 challenged the same before this Court despite having the requisite knowledge in that regard. 11. The following portions of the later judgment handed down by a 14-member Bench of this Court on 30.01.2014 in the case of Gen. (R.) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another (PLD 2014 SC 585) had made the matter even simpler: “12. The petitioner had proclaimed State of Emergency pursuant to a letter received from the then Prime Minister of Pakistan (letter reproduced in PLD 2009 SC 879 supra at page 1035 para 58). At this stage, the Court asked him as to whether the Prime Minister advised the President to act in violation of the Constitution to which the answer was no. The Court further asked him whether the Prime Minister had given any advice to impose State of Emergency or the petitioner acted in his own discretion, to which Mr. Satti replied that the petitioner acted in his own discretion. ------- --------------------- 37. ------- in fact, petitioner's learned counsel frankly admitted, on Court query, first that the then Prime Minister Mr. Shaukat Aziz had written a letter to the President of Pakistan and not to the Chief of Army Staff; second that the Prime Minister had not advised him to impose the State of Emergency rather "the petitioner acted in his own discretion". This frank admission by his counsel has further weakened his case for review. How could petitioner in his capacity as Chief of Army Staff or even as President act on his own discretion. He had no power under the law to impose State of Emergency and make Judges of the Supreme Court and High Courts dysfunctional notwithstanding the mandate of Article 48 of the Constitution -------” (Underlining and bold letters have been supplied for emphasis) 12. We have reproduced above what this Court and the High Court of Sindh, Karachi have already observed and declared in various judgments and such observations and declarations are relevant to the issue of aiders and abettors of respondent No. 2 in the alleged commission of high treason by him brought before us through the present appeal. As the trial of respondent No. 2 for the said offence is presently pending before the Special Court, therefore, we have restrained ourselves from recording our own opinions on the issue lest any opinion expressed by us may prejudice the case of the said respondent before the Special Court. The observations and declarations made by this Court and the Civil Appeal No. 118 of 2016 12 High Court of Sindh, Karachi in the cases mentioned above have already attained finality and they are in the public domain and, thus, any reference to the same by us in the present judgment may not be inappropriate. 13. Another critical aspect of the case in the context of the present appeal is that it was for the first time that through the order dated 21.11.2014 the Special Court had introduced the present appellant and two others as accused persons in the case of high treason against respondent No. 2 which order had subsequently been set aside by the Islamabad High Court, Islamabad on 10.11.2015 but despite setting aside of its earlier order dated 21.11.2014 the Special Court had reintroduced the appellant and two others as suspects in the said criminal case through its order dated 27.11.2015 and a writ petition filed by the appellant against the said order had been dismissed by the Islamabad High Court, Islamabad on 09.12.2015. We have found the learned counsel for the appellant to be quite justified in maintaining that after setting aside of its order dated 21.11.2014 the Special Court was left with no occasion whatsoever for reintroducing the appellant and two others as suspects in the relevant case for the purposes of investigation qua their involvement in commission of the alleged offence. Conducting investigation into the matter was surely a prerogative of the Federal Government and the Special Court had no jurisdiction to direct the investigating agency to associate the appellant or any other particular person with such investigation. 14. Section 5 of the Criminal Law Amendment (Special Court) Act, 1976 contemplates commencement of the proceedings of the Special Court through forwarding of a complaint in writing to it by the Federal Government against particular accused person or persons. By virtue of the provisions of section 202 of the Code of Criminal Procedure, 1898, which Code is applicable to a Special Court to some extent by virtue of the provisions of Section 6(1) read with section 2(a) of the Criminal Law Amendment (Special Civil Appeal No. 118 of 2016 13 Court) Act, 1976, a court, on receipt of a complaint of an offence of which it is authorised to take cognizance may postpone the issue of process for compelling the attendance of the person or persons complained against and either inquire into the case itself or direct an inquiry or investigation to be made “for the purpose of ascertaining the truth or falsehood of the complaint”. This clearly shows that a court seized of a complaint may or may not direct an inquiry or investigation to be made and if it does so direct then the direction can only be for ascertainment of truth or falsehood of “the complaint”, i.e. the allegations leveled against the person or persons complained against by the complainant. There is no jurisdiction available with such court under the said provisions of the law to direct an inquiry or investigation against a person or persons not formally complained against before the court by the complainant. Apart from that an inquiry or investigation can be directed by a court to be conducted under the said provisions of the law before the issuance of process against the person complained against and not at a stage where the trial of the person complained against has already commenced and is nearing its conclusion, as in the present case. 15. For what has been discussed above this appeal is allowed and all references to the present appellant and two others in the impugned orders passed by the Special Court and the Islamabad High Court, Islamabad on 27.11.2015 and 09.12.2015 respectively as suspects to be associated with any fresh investigation into the offence of high treason allegedly committed by respondent No. 2 are set aside. A fresh investigation into the said offence by associating any person with the same lies within the prerogative of the Federal Government but the Special Court or the Islamabad High Court, Islamabad could not name any individual to be associated with any such investigation. There is no provision in the Criminal Law Amendment (Special Court) Act, 1976 requiring the Special Court to await the result of any fresh investigation or to postpone the trial of an accused person till an amended or additional statement of the case or list of accused persons or the Civil Appeal No. 118 of 2016 14 charge is submitted by the Federal Government after such fresh investigation. The Special Court is, therefore, expected to proceed with the trial of respondent No. 2 with all convenient dispatch and without any unnecessary delay. Judge Judge Judge Announced in open Court at Islamabad on 26.02.2016. Judge Islamabad February 26, 2016 Approved for reporting.

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE/CONSTITUTIONAL JURISDICTION) PRESENT: MR. JUSTICE UMAR ATA BANDIAL, HCJ MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL APPEAL NO. 1191 OF 2016 AND CONSTITUTION PETITION NO. 18 OF 2000 (On appeal against the judgment dated 20.05.2015 passed by the Lahore High Court, Lahore in Writ Petition No. 1146/2010) (Constitution Petition filed to challenge the conviction of the petitioner by the Field General Court Martial) Ex. Col. Muhammad Azad Minhas (In CA 1191/2016) Col. Inayatullah Khan and another (In Cnst.P. 18/2000) … Appellant/Petitioners VERSUS Federation of Pakistan through Secretary Ministry of Defence etc (In both cases) … Respondents For the Appellant/Petitioners: In person (In both cases) For the State: Mr. Sajid Ilyas Bhatti, Addl. Attorney Gen Barrister Hassan Adeel Major Haider Sultan, JAG Branch Major Zeeshan Zaman Dates of Hearing: 24.09.2020, 01.10.2020, 15.12.2020, 01.03.2021, 27.04.2021, 27.05.2021, 30.11.2021, 18.01.2022 & 15.02.2022 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this consolidated judgment, we intend to decide Civil Appeal No. 1191/2016 & Constitution Petition No. 18/2000, as common questions of law and facts are involved in both these matters. 2. Precisely the facts of the matter pertaining to Civil Appeal No. 1191/2016 are that appellant Muhammad Azad Minhas joined Pakistan Military Academy as cadet and passed out as commissioned officer on 14.11.1971. Over the time, he became Colonel on 06.07.1995 CIVIL APPEAL NO. 1191 OF 2016 AND CONSTITUTION PETITION NO. 18 OF 2000 2 and was posted as Colonel General Staff to Corps Mangla Cantt HQ 1. Whereas, the petitioner Inayatullah Khan in Constitution Petition No. 18/2000 passed out from PMA Kakul in December, 1971. He also became Colonel with the efflux of time and was serving as Colonel Staff 17 Infantry Division, Kharian Cantt. On 26.09.1995 both of them were taken into custody along with two others by the intelligence agencies and as such they were thoroughly investigated. During course of interrogation, both of them were sent to face the following charges before the court under the Pakistan Army Act, 1952:- First Charge:- Under Section 59 of PAA 1952 (Against all accused) Committing a civil offence, that it is to say, conspiring to wage war against Pakistan, an offence punishable under Section 121-A of the Pakistan Penal Code, in that they together at Rawalpindi, Mangla and elsewhere, between the period from May 1995 to September 1995, alongwith PA- 12680 Colonel Liaqat Ali Raja and others, conspired to wage war against Pakistan so as to overthrow the Federal Government of Pakistan by means of criminal force. Second Charge:- Under Section 55 of PAA 1952 (Alternative to the first charge against accused No. 1 only i.e. Maj. General Zaheer ul Islam) Conduct to the prejudice of good order and military discipline, in that he, at the places and period mentioned in the first charge, knowing the existence of a conspiracy mentioned in the first charge, improperly did not report the matter to higher authorities concerned. Third Charge:- Under Section 55 of the PAA 1952 (Alternative to the first charge against accused No. 3 only i.e. the appellant Colonel Muhammad Azad Minhas) Conduct to the prejudice of good order and military discipline, in that he, at the places and period mentioned in the first charge, knowing the existence of a conspiracy mentioned in the first charge, improperly did not report the matter to higher authorities concerned. Fourth Charge:- Under Section 55 of the PAA 1952 (Alternative to the first charge against Conduct to the prejudice of good order and military discipline, in that he, at the places and period mentioned in the first charge, CIVIL APPEAL NO. 1191 OF 2016 AND CONSTITUTION PETITION NO. 18 OF 2000 3 accused No. 4 only i.e. petitioner Inayatullah Khan) knowing the existence of a conspiracy mentioned in the first charge, improperly did not report the matter to higher authorities concerned. Fifth Charge:- Under Section 31(d) of the PAA 1952 (Against accused No. 2 only i.e. co-accused Brigadier Mustansar Billah) Attempting to seduce any person in the military forces of Pakistan from his allegiance to the Government of Pakistan, in that he, at Quetta, during May 1995, attempted to seduce PA-12621 Colonel Muhammad Iqbal of Electronic Warfare Directorate, GHQ, from his allegiance to the Government of Pakistan by asking him to prepare a plan to neutralize the existing telephone communication system at Rawalpindi so as to enlist his (Colonel Muhammad Iqbal’s) support for furthering the design of the conspiracy mentioned in the first charge. 3. The appellant/petitioner filed Constitution Petition Nos. 8 & 9/1996 before this Court under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973, challenging the validity of their arrest, detention and trial by the Field General Court Martial but the same stood dismissed vide judgment dated 14.05.1996. Thereafter, the trial proceeded and at the conclusion of the trial, they were found guilty to the extent of third and fourth charge for having knowledge of the conspiracy and failing to report the same to the higher authorities, which conduct of them was prejudicial to good order and military discipline. Vide order dated 30.09.1996 they were ordered to be dismissed from service and to further suffer rigorous imprisonment for two years & four years respectively. Their conviction was also confirmed by the Chief of Army Staff vide order dated 28.10.1996. Both of them filed appeals before the Court of Appeal but the same were also dismissed vide order dated 06.11.1997. Pursuant to the conviction, their membership in the Army Officers Housing Scheme for allotment of a house at the time of retirement along with allotment of plots in Army Welfare Housing Scheme were ordered to be cancelled. Thereafter, the petitioner Inayatullah Khan CIVIL APPEAL NO. 1191 OF 2016 AND CONSTITUTION PETITION NO. 18 OF 2000 4 filed Constitution Petition No. 18/2000 before this Court whereas the appellant Muhammad Azad Minhas filed Writ Petition No. 1146 of 2010 before the Lahore High Court, Lahore, which was dismissed vide order dated 20.05.2015. Being aggrieved by the judgment of the High Court, he filed Civil Petition No. 1234/2015 before this Court wherein leave was granted, consequently, Civil Appeal No. 1191/2016 has arisen. 4. The appellant and the petitioner before us argued in person. During the course of arguments, the main contentions raised by them are precisely that when they were accused of principal offence i.e. First Charge, they could not have simultaneously been made accused of the alternate charge/offence. Contends that it is mandatory for the prosecution to prove the main offence before starting the trial on the alternative charge. Contends that the charge framed under the Pakistan Army Act is without jurisdiction and illegal as the same exclusively relates to misconduct or omission committed on the basis of assigned military duty. Contends that the impugned order of the Field General Court Martial was based upon mala fides, being coram non judice, as such, was without jurisdiction, therefore, the same is not sustainable in the eyes of law. Contends that their plots in Army Welfare Housing Scheme and memberships in Army Housing Scheme were cancelled illegally, without any backing of law, Rules or Regulations, which could authorize confiscation of their properties, therefore, the same is violative of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973. Lastly contends that the constitutional bar of limitation is not applicable to the proceedings conducted under Article 199 or Article 184 of the Constitution, as such, any delay in filing the Constitutional petitions either before this Court or before the High Court is of no avail to the respondents. 5. On the other hand, learned Additional Attorney General argued that any person charged during Court Martial with any offence punishable under Section 59 of the Army Act may be found guilty of any other offence to which he might have been found guilty. Contends that CIVIL APPEAL NO. 1191 OF 2016 AND CONSTITUTION PETITION NO. 18 OF 2000 5 the entire proceedings of the Field General Court Martial were well within the recognized principles of criminal justice and the same are unexceptionable. Contends that the Pakistan Army Act has complete mechanism and jurisdiction to charge and proceed against any army personnel found involved in commission of any illegal act, as such, any act committed by them can be tried under the relevant law i.e. Pakistan Army Act, 1952. Contends that the allocation of plots and membership in the housing society are the privileges, which are only assigned for army officers but after dismissal from service the appellant/petitioner have lost right to retain such a privilege. Lastly contends that as a general principle Constitutional bar of limitation is not strictly applicable to the proceedings under Article 199 and 184 of the Constitution, however, it is not absolute as the same should be initiated promptly and within a reasonable time to avoid the question of laches. 6. We have heard both appellant/petitioner and the learned Law Officer at considerable length and have perused the case record. The questions which crop up for our consideration are as follows:- i) Whether the appellant/petitioner were subject to Pakistan Army Act and the proceedings carried out by the forum constituted under Pakistan Army Act, 1952, were based upon mala fides, coram non judice, hence, passed without jurisdiction in violation of fundamental rights? ii) Whether an accused can be convicted under alternative charge/offence in case the main offence is not proved? iii) Whether the Constitution Petition No. 18/2000 filed before this Court is maintainable? iv) Whether the inordinate delay of about 13 years in filing the Constitutional Petition before the High Court can be condoned? v) Whether after dismissal from service, the appellant & petitioner are entitled for perks & privileges, which are meant for Army Personnels? CIVIL APPEAL NO. 1191 OF 2016 AND CONSTITUTION PETITION NO. 18 OF 2000 6 7. In order to adjudicate the question (i) supra, it seems essential to evaluate the intent of the Legislature while legislating the aforesaid Act i.e. Pakistan Army Act, 1952, wherein it is categorically stated “whereas it is expedient to consolidate and amend the law relating to Pakistan Army”. Section 2 of the said Act provides that following persons shall be subject to this Act. Relevant portion of the said provision reads as under:- “2. Persons subject to the Act.- (1) The following persons shall be subject to this Act, namely:- (a) officers, junior commissioned officers and warrant officers of the Pakistan Army;” 8. The plain reading of the afore-referred provision of law depicts that the persons subject to Pakistan Army Act, 1952, either in any of the capacity as an officer, junior commissioned officer or warrant officer during service at the relevant point of time are subject to Pakistan Army Act, 1952, and whenever an act violating any provision of said enactment is committed by them, the same would be exclusively dealt with by the provisions contained in the aforesaid Pakistan Army Act, 1952. There is no denial to this fact that both the appellant/petitioner were serving officers of Pakistan Army at the time when in pursuance of confidential/intelligence information regarding violation of the provisions of said enactment, they were taken into custody. During course of interrogation, the accusation against them was found to be correct and as such they were rightly dealt with under the law on the subject and as such their argument that the action taken by the authorities in pursuance of the material collected and the proceedings before the Court constituted under Pakistan Army Act, 1952, may be declared to be based upon mala fides has no legal justification. The enactment referred above does not disclose any exception to the general principle that any serving officer of military if found violating the law relating to its discipline would be dealt otherwise except under the Pakistan Army Act, 1952. Hence, the argument of the appellant/petitioner that their trial before the Field General Court Martial was an abuse of process has no sanctity and the same is vehemently CIVIL APPEAL NO. 1191 OF 2016 AND CONSTITUTION PETITION NO. 18 OF 2000 7 discarded. All the grievances of the appellant/petitioner regarding their apprehension, custody and prosecution before the Field General Court Martial are the steps, which can be taken by the order of the Commanding Officer subject to receipt of tangible information regarding the violation of any provision of Pakistan Army Act, 1952. Even under Section 549 of Code of Criminal Procedure, 1898, on receipt of an information from any source, the said provision can be pressed into to initiate proceedings to bring any subject to Army Act to face the attire of said enactment if there is an information regarding its breach/violation. Under this provision of law, the word “from any source” includes information supplied by armed forces of those who are falling within the jurisdiction of Pakistan Army Act, 1952 but their whereabouts are not traceable to them after their absence or being fugitive from law. In the instant case, both the appellant/petitioner were not falling within this category rather they were directly saddled with accusation falling squarely within the ambit of Pakistan Army Act, 1952, hence, the same was justifiably applicable in the given circumstances. In Ex. Gunner Muhammad Mushtaq Vs. Ministry of Defence (2015 SCMR 1071), this Court held the custody, trial and conviction of the accused army personnel by the Field General Court Martial to be held in accordance with law. The question whether a serving Army Officer is subject to Army Act and is triable by Field General Court Martial also came under discussion in Asim Bashir Vs. Federation of Pakistan (2021 SCMR 1176) wherein this Court candidly held as under:- “Given his status as an Army Officer, his apprehension, custody and prosecution before a Field General Court Martial are the steps taken within the remit of section 549 of the Code of Criminal Procedure, 1898 (the Code) which unambiguously authorizes such a prosecution on the option of Commanding Officer, a choice that is in line with the concurrent jurisdiction of Court Martial and Criminal Courts on the discretion of "Prescribed Officer" as contemplated by sections 94 and 95 of the Act ibid, laying down the procedure in such an eventuality, therefore, the argument that the petitioner was not liable to be treated as subject to the Act in view of the nature and venue of the crime is entirely beside the mark. We are also not impressed by the contention that the petitioner ought not to have been tried in Bahawalpur Cantonment and that CIVIL APPEAL NO. 1191 OF 2016 AND CONSTITUTION PETITION NO. 18 OF 2000 8 proceedings of Field General Court Martial stood vitiated on this score alone.” (Underlined to lay emphasis) 9. In the case of Said Zaman Khan Vs. Federation of Pakistan (2017 SCMR 1249) this Court has extended the view of this Court in Ex- Gunner Muhammad Mushtaq supra case wherein a civilian found in combat with army personnel was held liable to be tried under the Pakistan Army Act, 1952. One Said Zaman who was a civilian but was engaged in combat with the soldiers of the Pakistan army being a member of religiously motivated terrorist organization was found involved in attacking Armed Forces with deadly weapons causing death of Army personnel. This Court held that accused was involved in the commission of an offence under Section 2(1)(d)(iii) of the Pakistan Army Act, 1952, as incorporated by the Pakistan Army (Amendment) Act, 2015, hence, by operation of law he became subject to the Pakistan Army Act, 1952, and, therefore, became liable to trial by a FGCM. The Court further held that the offence with which the accused was charged was obviously punishable under the ordinary law of the land triable by a Criminal Court, hence, constituted a "civil offence" as defined by subsection (3) of Section 8 of the Pakistan Army Act, 1952, and was liable to be tried by the Field General Court Martial in view of the provisions of Section 59 of the said Act. 10. The concept of duty/obligation assigned to a military officer does necessarily relate to duty/responsibility assigned for a particular task, as argued before us if accepted correct it would amount to a narrow interpretation regarding responsibilities of members of disciplined force. A military officer of either of the rank is under bounden duty to execute momentary obligations assigned or not in order to uphold dignity, reputation, discipline and above all maintain order of the institution in letter and spirit. Any act or omission, which hampers integrity/discipline of the institution would definitely be accountable considering it an act triable under the Army Act. During the course of arguments, we have noticed that CIVIL APPEAL NO. 1191 OF 2016 AND CONSTITUTION PETITION NO. 18 OF 2000 9 the appellant/petitioner had already voiced their grievances while filing Constitutional Petition Nos. 8 & 9/1996 before this Court while calling in question the validity of their arrest, detention and trial by the Field General Court Martial convened under the provisions of Pakistan Army Act, 1952. However, this Court after discussing all aspects in detail and the relevant provisions of Law and the Constitution held that the appellant/petitioner along with other co-accused were subject to Pakistan Army Act and the trial held against the military officers before the Field General Court Martial was in accordance with law. All the objections raised before us are in-fact dealt with by this Court in a concrete manner while considering each and every aspect of the case with reference to “fair trial”, “due process” eliminating any scope of exploitation and dignity of the man while attending all requirements of justiciability and fairness to broaden the scope of safe administration of criminal justice. This judgment was reported as Shahida Zahir Abbasi Vs. President of Pakistan (PLD 1996 SC 632). It would be advantageous to reproduce the relevant portion of the judgment, which reads as under:- ‘From the above quoted passage, it is quite clear that the rules of procedure applicable for trial of a person in a criminal case before a Military Court do not violate any accepted judicial principle governing trial of an accused person. With the assistance of learned Attorney-General and the learned counsel for the petitioners we have gone through various provisions of the Act governing the procedure of trial before a Military Court and after going through the same, I am of the view that the procedure prescribed for trial before Military Courts is in no way contrary to the concept of a fair trial in a criminal case, I may also add here, that unlike the previous position when no appeal was provided against the conviction and sentence awarded by a Military Court, the Act now provides an appeal against the conviction and sentence awarded by a Military Court before an appellate forum.” 11. In the second round of litigation, both the appellant/petitioner exhausted all legal remedies available to them under the Pakistan Army Act up to the level of Chief of Army Staff and the Court of Appeals. It was afterwards, that they again invoked the Constitutional jurisdiction of this Court as also of the learned High Court by filing Constitutional petitions calling in question all those preliminary questions CIVIL APPEAL NO. 1191 OF 2016 AND CONSTITUTION PETITION NO. 18 OF 2000 10 already dealt by this Court. As far as maintainability of these petitions is concerned, though this Court in a number of cases has already held that Article 199 (3) of the Constitution of Islamic Republic of Pakistan clearly ousted the jurisdiction of High Courts from making an order in relation to affairs of matter of a person who is member of the Armed Forces of Pakistan, or who is for the time being covered by any special law relating to any of such forces, or in respect of any action taken in relation to such person as a member of the Armed Forces, or a person subject to such law and under this clause of Article 199(3) the jurisdiction of the High Court if assailed is barred with reference to the conviction or sentences recorded by the Field General Court Martial. However, a view contrary to earlier stance has now developed, which is recent in all fairness that the superior Courts have jurisdiction to interfere in the orders of the authorities relating to the Armed Forces if the same are found to be either result of mala fide or the same are coram non judice. In Said Zaman supra, this Court has held that any proceedings, convictions and sentences awarded by the Field General Court Martial (FGCM) can be called into question before the Constitutional Courts on the ground of mala fides, if tainted with bias or taken for a collateral purpose to cause damage to a person without legal justification while ignoring all settled principles of decency and fairness. Specific allegations of the collateral purpose or an ulterior motive must be made to hilt and proved to the satisfaction of the Court. However, this new concept of interference is still holding very bleak ground to interfere in the presence of express provisions of Constitution. However, in the instant case we have not been able to find out any element of mala fides on the part of the prosecution or authority to entertain these petitions in the given circumstances. Therefore, in absence of any element of mala fides on the part of competent fora, the conviction and sentences inflicted to the appellant/petitioner by the Field General Court Martial cannot be stamped to be result of coram non judice. The argument that the order of Field General Court Martial was violative of fundamental rights has no legal sanctity because firstly there is no material available to substantiate such aspect. Further both of them joined Pakistan CIVIL APPEAL NO. 1191 OF 2016 AND CONSTITUTION PETITION NO. 18 OF 2000 11 Army as of their own, with free will and after serving as commissioned officers for considerable time, they were reported for an act as such being subject to Pakistan Army Act, 1952, proceedings were initiated against them in lieu of violation of law, hence it cannot be termed as infringement of any fundamental right, which actually was not specifically pointed out during the course of proceedings. Otherwise these aspects qua proceedings before us have already been dealt in the afore-referred salutary judgment of this Court. Otherwise, the “code of procedure” of the Field General Court Martial was even brought under the judicial scrutiny of this Court in another famous case titled F.B. Ali Vs. The State (PLD 1975 SC 506) and the same was found to be in conformity with the generally accepted and recognized principles of administration of criminal justice. In Shahida Zaheer Abbasi case mentioned supra, this Court after thoroughly analyzing the provisions of Pakistan Army Act, Pakistan Army Rules and the Constitution of Islamic Republic of Pakistan has candidly reiterated while holding that the “Army Act, 1952 is one of those pieces of legislation which is protected under Article 8(3)(a) of the Constitution from being challenged on the grounds of its consistency with the provisions contained in Chapter I of Part II of the Constitution of Islamic Republic of Pakistan. Rules of procedure applicable for trial of a person in a criminal case before a Military Court do not violate any accepted judicial principle governing trial of an accused person. Procedure prescribed for trial before Military Courts is in no way contrary to the concept of a fair trial in a criminal case.” These judgments were upheld by this Court in a subsequent judgment reported as District Bar Association Vs. Federation of Pakistan (PLD 2015 SC 401) and it was held that the provisions of Pakistan Army Act cannot be invalidated for offending against fundamental rights including Article 25 of the Constitution. Similarly Article 10-A also cannot be pressed into service to challenge the provisions of Pakistan Army Act, 1952. All these questions were determined by this Court in the earlier round of litigation, which has been pointed out in the preceding paragraphs. Furthermore, the case of the appellant/petitioner has become more sensitive by way of conviction CIVIL APPEAL NO. 1191 OF 2016 AND CONSTITUTION PETITION NO. 18 OF 2000 12 recorded against them and further it was served out, which makes them previous convicts. 12. Now the “pivotal question” raised during arguments is as to whether an accused person under the Pakistan Army Act can be convicted for an alternative charge/offence in case the principal charge/offence is not proved. The concept of alternative charge is not unknown in the sphere of Pakistan Army Act. Sections 111(5) of the Pakistan Army Act and Rules 21(4) and 51(7) & (8) speak about the framing and punishment of an accused under alternative charge/offence. The bare perusal of the charge sheet reveals that both the appellant/petitioner were not only charge sheeted for the main offence but also for the alternative charges/offences and it was well within the knowledge of both of them. It is now well settled without second thought that if an accused is charged with one offence but from the evidence it appears to have committed a different offence for which he might have been charged under the said provisions of law, he may be convicted for the offence he is found to have committed, although he was not charged with the same. However, in the present case, the appellant/petitioner were not only charged for the main offence but for the alternative charges as well, which is spelled out from bare reading of charge sheet. All courts after evaluating the evidence led by the prosecution found that the main offence could not be proved against them but as there was sufficient evidence to sustain their conviction under the alternative charge, hence, they were convicted accordingly. Needless to mention that when appellant/petitioner had filed Constitutional petitions before this Court in the year 1996, although charge had been framed at that time but they never raised this objection before any court including this court at that juncture of time as to why they have been charge sheeted for the alternative offences, rather they failed to bring on record an iota of material in their defense except instant contention at belated stage, which has no legal value in the eyes of law. The concept of conviction under alternative charge in the absence of conviction under the main charge is a well established/recognized principle of criminal justice system as provided in Sections 236 to 240 of the Code of Criminal CIVIL APPEAL NO. 1191 OF 2016 AND CONSTITUTION PETITION NO. 18 OF 2000 13 Procedure. In Jiand Vs. The State (1991 SCMR 1268), this Court held that cumulative effect of Sections 236/237 Cr.P.C. is that if an accused is charged with one offence but from the evidence it appears to have committed an alternative offence for which he might have been charged under the provisions of that section, he may be convicted for an offence which he is shown to have committed, if supported by record, although he was not charged with the same. Even this aspect is not absolute, in absence of any alternative charge he can be convicted for any offence if it covers the ingredients of said offence. 13. Now, we would advert to the question as to whether Constitution Petitions before this Court and the High Court were maintainable. Before dealing with this question, it would be in order to discuss as to whether the jurisdiction exercised by the Supreme Court under Article 184(3) of the Constitution is analogous to the power available to the High Court under Article 199 of the Constitution. In Shahida Zahir supra case, this aspect of the matter was considered at length and this Court while relying on an earlier judgment of this Court in Benazir Bhutto Vs. Federation of Pakistan (PLD 1988 SC 416), which is perhaps considered as the judgment of first impression laying down the parameters within which the power and jurisdiction of this Court under Article 184(3) of the Constitution is exercised, held as follows:- “I would, however, like to make it clear that the power conferred on the Supreme Court by Article 184(3) is distinct and has its origin in Article 22 of the 1956 Constitution and is exerciseable on its own terminology. The impression, if there is, that the trappings of sub Articles 1(a) and I (c) of Article 199 are also to be read into this Article appears to me to be without substance as there are no words in Article 184 (3) to incorporate them except, of course, the words make an order of the nature mentioned in the said Article, which are specifically referable to the nature of the order in sub-Article 199(c) of Article 199 giving such directions as may be appropriate for the enforcement of any of the Fundamental Rights. The nature of the order, however, is the end product of the Judicial power exercised. Therefore, it will not control or regulate, in any way, the exercise of power so as to make it exercisable only at the instance of the 'aggrieved party' in the context of adversary proceedings. ………………………… CIVIL APPEAL NO. 1191 OF 2016 AND CONSTITUTION PETITION NO. 18 OF 2000 14 On the language of Article 184(3), it is needless to insist on a rigid formula of proceedings for the enforcement of the Fundamental Rights. If the framers of the Constitution had intended the proceedings for the enforcement of the Fundamental Rights to be in a strait-jacket, then they would have said so, but not having done that, I would not read any constraint in it, Article 184(3) therefore, provides abundant scope for the enforcement of the Fundamental Rights of an individual or a group or class of persons in the event of their infraction. Unlike in Article 199, the Framers of the Constitution placed no limitation nor prescribed any condition or stipulation for obtaining relief and redress under Article 184(3). No strait-jacket formula was prescribed for the enforcement of the Rights, the obvious reason that can be spelled out is that in case the Supreme Court was itself of the view in a given case that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, it should directly interfere, and any rigid formula or strait-jacket formula prescribed for enforcement of the Rights would be self-defeating." 14. In District Bar Association Vs. Federation of Pakistan (PLD 2015 SC 401), this Court has held that in our Constitution, fundamental rights have been guaranteed to the citizen; specific provisions have been inserted in the Constitution to reinforce such protection and where there is a violation in this behalf by the Executive or the Legislature, the remedy available to an aggrieved person is to approach the Courts for the redressal of his grievances and enforcement of his Fundamental Rights, as is evident from Articles 184 and 199 of the Constitution. It is, therefore, clear that although powers conferred upon this Court and the High Courts under Articles 184 (3) and 199 of the Constitution are distinct but an aggrieved party, whose fundamental rights have been infringed, can knock the doors of the Court for redressal of its grievances. However, it is also settled that any order passed or sentence awarded during a Court Martial or other forums under the Pakistan Army Act, 1952, is subject to judicial review both by the High Courts and the Supreme Court only on the ground of mala fides including malice in law, without jurisdiction or coram non judice. Before invoking the jurisdiction of this Court or the High Court, the test to pass is strictly confined as to whether the order/sentence passed during Court Martial is suffering from mala fides, without jurisdiction and CIVIL APPEAL NO. 1191 OF 2016 AND CONSTITUTION PETITION NO. 18 OF 2000 15 coram non judice. In absence of any mala fide on the part of the prosecution, the conviction and sentences awarded to the appellant/petitioner by the Field General Court Martial cannot be stamped to be coram non judice, which otherwise is a rare phenomenon, therefore, it can safely be said that the Constitutional petitions filed by the appellant/petitioner either before this Court or before the High Court in the given circumstances as disclosed in detail were not maintainable. Even otherwise, petitioner Inayatullah Khan by filing Constitution Petition No. 18/2000 had challenged his conviction after lapse of more than three years. Same is the case with appellant Muhammad Azad Minhas, who had challenged his conviction before the High Court after delay of more than 13 years. It is established principle that delay defeats equity and equity leans in favour of vigilant. Any person may have an enforceable right but if he fails to enforce such right within the time stipulated by law then the right becomes unenforceable. Law of limitation is not considered a mere formality and is required to be observed being of mandatory nature. Law of laches takes away right of the party to have the right enforced, which otherwise, is enforceable under the law because law requires that one having an enforceable right should seek enforcement whereof within time specified by law. Although as a general principle bar of limitation is not applicable to the proceedings under Article 199 and 184 of the Constitution but insistence is placed on initiating proceedings promptly and within a reasonable time to avoid the question of laches. Reliance is placed on Dr. Muhammad Tahir-ul-Qadri Vs. Federation of Pakistan (PLD 2013 SC 413). In the said case, this Court while placing reliance on an earlier judgment of this Court reported as Jawad Mir Muhammadi vs. Haroon Mirza (PLD 2007 SC 472) held that laches per se is not a bar to the constitutional jurisdiction and question of delay in filing would have to be examined with reference to the facts of each case; question of delay/laches 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 or ignored subject to facts and circumstances of each case. In CIVIL APPEAL NO. 1191 OF 2016 AND CONSTITUTION PETITION NO. 18 OF 2000 16 S.A. Jameel v. Secretary to the Govt. of the Punjab (2005 SCMR 126), this Court held that question of laches has to be examined on equitable principles for the reason that the exercise of Constitutional jurisdiction is always discretionary with the Court and the relief so granted is always in the nature of equitable relief. In case the Court finds that the party invoking Constitutional jurisdiction is guilty of contumacious lethargy, inaction, laxity or gross negligence in the prosecution or a cause for enforcement of a right, the Court would be justified in non- suiting such person on the premise of laches. Both the appellant/petitioner could not give sufficient reason as to why they remained silent for years and did not invoke the Constitutional jurisdiction well in time, therefore, on this score alone, their Constitutional petitions are liable to be dismissed. 15. The only question which remains in the field is whether after dismissal from service, the appellant/petitioner are still entitled for the privileges i.e. membership in the housing scheme, allotment of plots and further all amenity services, which are meant for the army personnel. Further, that the withdrawal of all these facilities does fall within the ambit of dictum ‘double jeopardy’? It is settled that dismissal from service squarely takes away all the perks, privileges and amenity services from an army personnel conferred in lieu of his induction into the Pakistan Army. All these benefits are subject to service and any action contrary to service structure takes away not only perks and privileges rather the privilege of salary, pension, gratuity etc for which he was otherwise entitled. Soon after the action taken by the military authorities against the appellant/petitioner, their services were terminated resulting into depriving them of all the benefits and in pursuance of that order, which was upheld to the highest forum, the benefits attached to the service i.e. plot, house, amenity services etc had been withdrawn. There is no second cavil to this proposition that after dismissal from service, the appellant/petitioner cannot claim any benefit because of the reason that their termination was in pursuance of the defiance of the discipline and order of the institution discretely. We have repeatedly asked them to show any law or precedent wherein the perks, privileges and amenity CIVIL APPEAL NO. 1191 OF 2016 AND CONSTITUTION PETITION NO. 18 OF 2000 17 services were continued to be enjoyed by a person, who was dismissed from service after facing court martial but they failed to do so. Apart from this, to consider whether it amounts to ‘double jeopardy’, it would be in order to reproduce Section 403 of the Code of Criminal Procedure and Article 13(a) of the Constitution of Islamic Republic of Pakistan, 1973, which read as under:- “403. Persons once convicted or acquitted not to be tried for the same offence. (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not to be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 36, or for which he might have been convicted under section 237. 13. No person— (a) shall be prosecuted or punished for the same offence more than once” 16. A close analysis of the above said provisions discloses that the case of the appellant/petitioner does not fall within the ambit of these provisions of law and the Constitution. The concept of double jeopardy is placed upon entirely different premises which are meant for entirely different situations which are squarely missing in this case, hence, the claim of the appellant/petitioner that they are victim of double jeopardy is without any legal foundation, consequently it is immensely rebutted. 17. For what has been discussed above, the appeal and Constitution petition are dismissed being without merit. CHIEF JUSTICE JUDGE JUDGE Islamabad, the Announced on 12.09.2023 Approved For Reporting Khurram

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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 Appeals No.1194 to 1197 of 2014 (On appeal from judgment of Peshawar High Court, Peshawar dated 21.7.2014 passed in R.F.A. Nos.6-P, 16-P/2014 & C.R. 105-P & 106-P/2014) Zafeer Gul (in all appeals) Appellant Versus Dr. Riaz ali & others (in C.A. No.1194/2014) Anar Gul & others (in C.A. No.1195/2014) Mst. Farzana Javed & others (in C.A. No.1196/2014) Haji Sattar Gul & others (in C.A. No.1197/2014) Respondents Appellant (in all appeals): In person For respondents No.1,3-7: Qazi Jawwad Ehsanullah, ASC (in C.A. No.1194-1195/2014) For respondents No.3-6: Qazi Jawwad Ehsanullah, ASC (in C.A. No.1196-1197/2014) Date of hearing: 14.5.2015 Judgment Anwar Zaheer Jamali, J – These four connected appeals arise out of the common judgment dated 21.7.2014, passed by learned Single Judge in Chambers of the Peshawar High Court, Peshawar, in R.F.A. Nos.6-P of 2014, 16-P of 2014, and C.R. Nos.105-P of 2014 & 106-P of 2014. In these cases the order dated 16.12.2013, passed by the learned Additional District Judge, Peshawar, thereby ordering return of the memo of two civil appeals, was challenged by the respondents on the ground that looking to the valuation of the suit in the plaint and the pecuniary jurisdiction of the Court of C.A. No.1194 of 2014 etc. 2 Additional District Judge, Peshawar at the time of filing civil appeals No.58 of 2013 and 59 of 2013, on 5.10.2011, and in view of the relevant provisions of the Suit Valuation Act 1887 and the Civil Courts Ordinance, 1962, such remedy was rightly availed. Therefore, the order for return of memo of appeals for its presentation before the concerned forum was uncalled for and illegal. 2. We have heard the arguments of the appellant in person and the respondents’ learned ASC and have perused the case record, which reveals that through impugned judgment, relying upon the ratio of the judgment in the case of Muhammad Ayub & four others versus Dr. Obaidullah and six others (1999 SCMR 394) and some other case law, the Peshawar High Court set aside the order dated 16.12.2013, impugned before it and remanded the case to the appellate Court, which at the relevant time had pecuniary jurisdiction to hear these appeals and decide the same on merits and in accordance with law. In doing so, the High Court has aptly taken into account the fact that as the civil suit for partition in respect of the disputed property, instituted before the trial Court, was valued at Rs.230 for the purpose of jurisdiction and Rs.15 for the purpose of Court fee, therefore, in terms of section 18 of the Civil Courts Ordinance, 1962, such valuation disclosed in the plaint was to be considered the value of the suit property for determining the forum of appeal qua pecuniary jurisdiction of the appellate Court. C.A. No.1194 of 2014 etc. 3 3. To expound the legal position in relation to the valuation of a suit for partition and separate possession for the purpose of jurisdiction, it will be pertinent to mention here that every co-sharer in the immovable property is legally deemed to be in its joint possession to the extent of his undivided share. Therefore, in a suit of such nature, law permits him tentative valuation of his share in the immovable property as specified in the plaint for the purpose of pecuniary jurisdiction, which is subject to final determination by the Court; till then the valuation shown in the plaint is to be deemed as proper value of the suit property for the purpose of availing the remedy of appeal qua determining the forum of appeal. For further guidance see: Ajiruddin Moudal and another versus Rahman Fakir and others (PLD 1961 S.C. 349). 4. As a result of above discussion, no exception could be taken to such findings in the impugned judgment enunciating the above legal position. 5. Accordingly, above captioned four appeals are dismissed. Announced at Islamabad On 25th May, 2015 Judge Approved for reporting. Riaz Judge Judge Judge C.A. No.1194 of 2014 etc. 4

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED MR. JUSTICE SARDAR TARIQ MASOOD MR. JUSTICE FAISAL ARAB CIVIL APPEAL NO. 1203 OF 2014 (On appeal against the judgment dated 18.10.2012 passed by the Peshawar High Court, D.I. Khan Bench in Writ Petition No. 841/2010) WAPDA through its Chairman and another … Appellants VERSUS Mst. Parizada … Respondent For the Appellants: Mian Shafaqat Jan, ASC Syed Rifaqat Hussain Shah, AOR For the Respondent: Mr. Arshad Zaman Kayani, ASC Ch. Akhtar Ali, AOR Date of Hearing: 11.07.2018 JUDGMENT FAISAL ARAB, J.- Naseeb Khan, the deceased husband of the respondent was appointed by the petitioner as office Chowkidar on 02.10.1982. He died during service on 05.06.1992 after putting in 9 years and 8 months of service. After his death, his widow was paid group life insurance and other financial benefits but was denied pension. The respondent-widow then claimed that her husband being Chowkidar and died after serving for a period of about 10 years, she is entitled to get pension under Wapda Pension Rules. Her claim for pension was denied by the department on the ground that her deceased husband was only a work charge employee. The respondent then wrote a letter to the Hon’ble Chief Justice of Peshawar High Court, which was treated as Writ Petition. The learned High Court after taking into CIVIL APPEAL NO. 1203 OF 2014 2 consideration the fact that respondent’s husband was working as office Chowkidar and during his service was given annual increments, as were permissible to the regular employees and upon his death, respondent-widow was also given all other financial benefits except the pension, vide impugned judgment held that respondent-widow is entitled to pensionary benefits. Aggrieved by such decision, petitioner department filed Civil Petition No. 346/2013 wherein leave was granted to consider whether as per the claim of the petitioner, the late husband of the respondent was a work charge employee. 2. After examining the record, we are of the view that respondent’s deceased husband was appointed as Chowkidar, which is a permanent post and that is the reason that he had been given annual increments and upon his death, her wife was given all financial benefits including group life insurance etc but was denied pension. From the nature of job and the period respondent’s husband had served, it cannot be said that he was a work charge employee. There was every likelihood that he would have continued to serve had he lived longer. Learned counsel for the petitioners in the alternative argued that even otherwise, the respondent’s husband has not put in the minimum ten years service in terms of pension table contained in Rule 6 of the Pakistan Wapda Pension Rules, therefore, the claim of pension even on the basis of a permanent employee was not permissible in law. In rebuttal, learned counsel for the respondent referred to Volume-II of Wapda Compendium of important directives/office orders issued by the authority. He specifically pointed out CIVIL APPEAL NO. 1203 OF 2014 3 paragraph 2(c)(5) of Serial Number 2 under the heading ‘Payment of Dues’ of Wapda, which clearly provides that “pension as well as Commutation (25%) is to be paid, if service is 9-1/2 years or more.” In the present case, the respondent’s husband had admittedly put in 9 years and 8 months service. Hence, he being not a work charge employee and has been working on a permanent post until his death, her widow was entitled to receive pension. We, therefore, find no justification to interfere in the impugned judgment. This appeal having no merit is accordingly dismissed. JUDGE JUDGE JUDGE Islamabad, the 11th of July, 2018 Not Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE GULZAR AHMED MR. JUSTICE DOST MUHAMMAD KHAN Civil Appeal No.1207 of 2004 a/w CAs 1208/04 and CAs No.577-578 of 2006 (On appeal from the judgment dated 17.04.2001, passed by the Lahore High Court, Lahore in C.R.s No.376-377 of 1998) Mohammad Ijaz (in CAs No.1207-1208/04) Muhammad Hussain (in CAs No.577-578/06) ….Appellants Versus Mohammad Shafi (decd.) through L.Rs. ..Respondent in all cases For the appellants: Ch. Mushtaq Ahmad Khan, Sr. ASC (CAs 1207-1208) Mr. Ishfaq Qayyum Cheema, ASC (CAs 577-578): Mr. Muhammad Siddique Khan Baloch, ASC For respondents No.1-2: Mr. Taki Ahmed Khan, ASC (CAs No.1207-1208) For respondent No.3: Ex-parte (in call cases) Date of hearing: 06.1.2016 JUDGMENT Dost Muhammad Khan, J.— This single judgment shall also decide CA No.1208/04 and CAs No.577-578/06 because all have arisen from almost the same judgment of the Lahore High Court dated 17.04.2001, through which Civil Revision Petitions No.376-D and 377- D of 1987 were allowed and two separate suits for possession through exercise of right of pre-emption were decreed by reversing the judgment and decrees of the learned Additional District Judge, Camp at Narowal. 2. Leave to appeal in all the four cases was granted to consider as to whether the suits, filed by the respondents/preemptors were presented to the competent court on 30.05.1963 and if it was not CAs 1207/04 etc. 2 so then, whether these had become time barred on the date when the same were received by the competent forum/Civil Judge, Narowal, after the said Court reopened for judicial work. 3. The epitome of the relevant facts of the present controversy is that, the appellants in these two sets of appeals purchased land through two different transactions. In the first transaction, the land measuring 53-K, 4-M was purchased on 31.05.1962 through mutation No.675 for sale consideration of Rs.4,000/-. Through the second transaction, the remaining land of the vendor, measuring 41-K, 16-M was purchased on 21.12.1962. 4. The respondents herein, on the basis of superior right of pre-emption, instituted two separate suits on 30.5.1963, but before the then Tehsildar of the area, due to the absence of the Civil Judge. These suits were transmitted by the Tehsildar to the learned Civil Judge, who received the same on 5.6.1963 and were duly registered. 5. The appellants/vendees contested both the suits on various legal and factual grounds however, after holding trial, both the suits were decreed by the Trial Court vide judgment and decrees dated 10.12.1985. On appeals, filed by the appellants, the learned Additional District Judge, Camp at Narowal held that the suit, through which the first transaction of sale was pre-empted, was barred by time as in his view these were not presented or filed in a competent court while about the second suit the learned District Appellate Court held that after dismissal of the first suit, the vendees i.e. the present appellants had become co-owners in the suit property thus, they were possessing equal right of pre-emption and in this way superior right of pre- CAs 1207/04 etc. 3 emption could not be claimed by the respondents/preemptors, thus, the second suit was also dismissed and both the appeals were allowed. 6. The learned Judge in Chamber of the Lahore High Court, Lahore through the above Civil Revision Petitions, reversed the findings of the learned Additional District Judge and restored the judgments and decrees of the Trial Court and decreed both the suits. 7. The entire controversy needed to be resolved is, the one discussed in para-2 of this judgment. 8. Learned counsel for the parties also addressed arguments on this point alone. We have considered their valuable arguments and have carefully perused the record as well. 9. It is an admitted fact that only one Civil Judge was posted at Narowal, which by then was having the status of Tehsil, or to say, sub-division. The filing of the suits before the Tehsildar in the absence of the Civil Judge from the station, was a regular practice therefore, filing of the present suits before him could not be taken as an exception. 10. Learned ASC for the appellants argued with considerable vehemence that notification No.157/C-II-26 dated 10.02.1969, issued by the learned District Judge, Sialkot, who was competent to issue the same, could not be given retrospective effect to cover the presentation or filing of the present suits before the then Tehsildar, Narowal therefore, it was wrongly relied upon by the learned Judge in Chamber of the Lahore High Court. CAs 1207/04 etc. 4 To clarify the factual position for the purpose of drawing legitimate inference there-from, the said notification is reproduced below:- “I hereby authorize the Tehsildars Narowal and Shakargarh Tehsils who are receiving plaints in the absence of a Civil Judge in that area to sign challan forms for the deposit of rent and other amounts in consequent (consequence) of orders passed by the Civil Judge in that behalf.” The words employed in the notification strongly suggest to an unrebuttable extent that the Tehsildars Narowal and Shakargarh, both were already authorized in receiving plaints in the absence of Civil Judge in that areas however, through this notification they were conferred upon additional powers to sign challan forms for the deposit of rent and other amounts in consequence of orders passed by the Civil Judge in that behalf. 11. Neither the appellants have brought on record any evidence to the contrary nor the learned Additional District Judge, who reversed the judgments and decrees of the Trial Court, has taken pains to probe into the matter in a legal manner by tracing out the origin of the authorization of Tehsildars by the District Judge of the Sessions Division, under Rule 7(c) of the High Court (Lahore) Rules and Orders, Chapter-I, Part-B, read with section 23 of the Civil Court Ordinance, 1962. 12. It must always be kept in mind that the establishment of judicature has been ordained by Article 175 of the Constitution. In Sub-Article (3) of Article 175 ibid it was mandatory for the State to separate the Judiciary from the Executive progressively within the initial period of five years however, this period was extended to CAs 1207/04 etc. 5 fourteen years by the then Martial Law Administrator, by inserting the amendment through Presidential Order No.14 of 1985 however, after the landmark judgment of this Court in the case of Government of Sindh v. Sharaf Faridi (PLD 1994 SC 105) the Judiciary was ultimately separated from the Executive Branch in 1994-95 due to the written undertakings, given by the Federal Government and all the Provincial Governments. 13. The reported precedents of this Court would show that presentation of plaints before the Tehsildar, where no other judicial officer of low grade was available, was a consistent practice in vogue in the said days when the Executive limb of the State was also exercising judicial powers. It may not be out of place to mention that Tehsildar possesses and exercises two-fold jurisdiction. Under the Land Revenue Act, he acts as a Revenue Officer which falls within the administrative province of the revenue authorities however, the same Tehsildar was graded as 1st Class or 2nd Class Magistrate/Revenue Courts under the provisions of The Punjab Tenancy Act, 1887. In this regard, reference may be made to the case of Elahi Bakhsh v. Mst. Balqees Begum [1992 PSC 1655(b)], therefore, we are unable to subscribe to the plea taken by the learned counsel for the appellants. 14. As already pointed out that for the resolution of civil, criminal and revenue disputes, different classes of courts have been constituted through different enactments. In some categories of cases, these different categories of courts exercise almost the same and similar jurisdiction but procedure for that is differently provided. In this regard, reference may be made to a revenue court where a title dispute is raised then the revenue officer or the Collector may frame CAs 1207/04 etc. 6 any issue and decide the title himself or in the alternative, may refer it to the Civil Court for determination. Similarly, with regard to the dispute over immovable property, Magistrate of 1st Class exercises powers to regulate the possession of it and confers it on the other party like the Civil Court does it u/Ss. 8 and 9 of the Specific Relief Act, 1877. 15. As the present suits were instituted in the early days when Sessions Divisions were few in the then West Pakistan and only camp courts were held at Tehsil Headquarters at different intervals, hence we entertain no amount of doubt that on the crucial date, the lonely Civil Judge posted at Narowal, was not present and similarly the Tehsildar was much earlier authorized to receive the plaints, however, through the ibid notification of 1969 extra powers were conferred upon him to deal with urgent matters because of the temporary absence of Civil Judge. 16. The litigants are the major stakeholders in the justice system. It is because of the court fee paid, different types of fine recovered and cost imposed upon them, a handsome revenue is generated for the State from their pockets thus, it is the constitutional and legal obligation of the State to provide the maximum facilities to the litigants for the redressal of their grievance through different courts duly constituted. It was in this background that the Lahore High Court had authorized the District & Sessions Judges to confer upon any officer, powers of receiving plaints to sign and endorse forms for the deposit of rent and other amounts in the temporary absence of the Civil Judge from the Tehsil Headquarters. CAs 1207/04 etc. 7 17. Just for a moment, if it is assumed, albeit not correct, that the then Tehsildar was not competent to receive the plaint and the learned District & Sessions Judge of District Sialkot had also not issued any notification or public notice to directly receive such plaints, etc. then, for such omission the respondents/plaintiffs cannot be blamed nor they can be held to be at fault because it was/is the legal obligation of the court to facilitate the litigants, approaching the courts conveniently. There is a well-known maxim “Actus Curiae Neminem Gravabit” (an act of the court shall prejudice no man) thus, where any court is found to have not complied with the mandatory provision of law or omitted to pass an order, required by law in the prescribed manner then, the litigants/parties cannot be taxed, much less penalized for the act or omission of the court. The fault in such cases does lie with the court and not with the litigants and no litigant should suffer on that account unless he/they are contumaciously negligent and have deliberately not complied with a mandatory provision of law. (see PLD 1972 SC 69). Even if it is held that filing of the plaint before the Tehsildar was not valid then, section 4 of the Limitation Act and Rules of Propriety will come into play and no limitation shall run against such party till the date, the competent court i.e. of Civil Judge reopened for judicial work. The provision of S.4 of the Limitation Act does not extend or enlarge the period of limitation, prescribed under the law however, it certainly stops the clock to tic forward to the prejudice of the litigant due to closure of the Court and permit him/them to file the plaint/appeal/application on the re-opening of the Court, albeit the period of limitation provided there-for had expired on the day when the court was closed. In the present case, the evidence does furnish CAs 1207/04 etc. 8 proof that the Presiding Officer was on tour to another Tehsil/District and was holding Camp Court there, obliging the present respondent to have approached him in case he was reachable for the filing of the plaints. In any case, the respondents/plaintiffs cannot be held to have committed any fault or default in presenting the plaint to the Tehsildar, who was regularly receiving the same, duly authorized by the District & Sessions Judge by then. 18. In this case, the learned Civil Judge without any exception or reservation received the plaints from the Tehsildar and registered the same in the relevant register, which is another fact, suggesting that the practice of receiving the plaints by the Tehsildar was well in the field and was duly acknowledged, therefore, in our considered view the contention of the learned ASC for the appellants is absolutely unfounded and liable to be rejected. In this regard, reference may be made to the case of Rashad Ehsan and others v. Bashir Ahmad (PLD 1989 SC 146). Similar proposition was resolved by this Court in the above manner in the case of Muhammad Yar v. Muhammad (2003 SCMR 1772) where a plethora of authorities, right from the Indian jurisdiction upto 1968 were relied upon. 19. We fully endorse the view taken by the learned Judge in Chamber of the Lahore High Court that on one hand the learned Additional District Judge held almost a similar view but jumped at the conclusion without any justification by holding that because due to dismissal of the 1st suit, the vendees/appellants herein had become co- owners in the suit land and have equal right therefore, the superior right of preemption of the respondents/plaintiffs has been brought to naught and was not enforceable. This was rightly held to be a wrong CAs 1207/04 etc. 9 conclusion against the statutory provisions of law and was rightly set aside by the High Court. 20. During the course of hearing of these appeals, we have observed that right from the beginning upto this Court, the appellants/vendees have taken shelter behind mere technicalities to defeat the right of pre-emption of the respondents/plaintiffs, although certain technicalities of law, where right is vested in the opposite party by efflux of time or where public policy demands so, may become relevant however, the same cannot be given any preference by defeating the ends of justice, depriving a party of substantive rights, which accrued to it under the law and principle of justice. In this regard the famous principle laid down in the case of Imtiaz Ahmad v. Ghulam Ali (PLD 1963 SC 382) is reproduced below: “…the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy…..Any system which by giving effect to the form and not the substance defeats substantive rights (and) is defective to that extent.” 21. Judged and discussed from all angles, we are entertaining no amount of doubt that the learned Judge in Chamber of the Lahore High Court has fairly comprehended the correct legal position, according to the facts and circumstances of the case and has applied the correct principle of law to it, to which no exception can be taken on any ground whatsoever. CAs 1207/04 etc. 10 22. Accordingly, all these appeals are found bereft of legal merits, both on factual and legal premises. Thus, the same are dismissed, with no order as to costs. Judge Judge Islamabad, the 6th January, 2016 Nisar /-‘ Approved For Reporting.

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{'id': 'C.A.1207_2004.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE GULZAR AHMED MR. JUSTICE DOST MUHAMMAD KHAN Civil Appeal No.1208 of 2011 (On appeal from the judgment dated 29.11.2010 passed by the Lahore High Court Lahore in Civil Revision No.29/2008) Malik Muzaffar Ahmed …Appellant Versus Majlis-e-Ilmi Society thr. Muhammad Zubair ..Respondent For the appellant: Khawaja Saee-uz-Zafar, ASC For the respondent: Raja Muhammad Irshad, ASC Syed Rifaqat Hussain Shah, AOR Date of hearing: 15.12.2015 JUDGMENT Dost Muhammad Khan, J.— This appeal has been filed against the impugned judgment of the learned Judge in Chamber of the Lahore High Court, Lahore rejecting the plaint of the appellant under Order-VII, Rule-11 CPC after setting aside the order of the Trial Judge, who rejected the application and held that after recording some evidence the question of exemption from pre-emption then would be decided. 2. Learned ASC for the appellant vehemently contended that the learned High Court has fallen in error due to misinterpretation of the language of clause (a) of sub-section (1) of section 23 of the Punjab Pre-emption Act, 1991, which only provides exemption from exercise of right of pre-emption to the sale of Waqf Property or property used for charitable, religious or public purposes. To understand the scope and true language of the said provision of law, it is reproduced below:- CA 1208/11 2 “23. No right of pre-emption in respect of certain properties. –(1) No right of pre-emption shall exist in respect of sale of— (a) Waqf property or property used for charitable, religious or public purposes.” The learned ASC made attempt to take benefit of the defective language of the Statute without making efforts to discover the true intent of the Legislature, rather avoided to attend to that proposition despite quarries, made by the Court. 3. The facts of the case are that, the respondent, Majlis-e- Ilmi Society, purchased land measuring 123-K, 3-M, described in the heading of the plaint, from one Shoaib Ahmed for a sale consideration of Rs.47,00,000/-. This sale of land was pre-empted by the appellant being adjacent owner however, the respondent filed an application under Order-VII, Rule-11 CPC for rejection of the plaint on the strength of the provision of S.23 of the Punjab Pre-emption Act, 1991, as according to them the same was exempt from the pre-emption right. The application was dismissed as stated above however, the learned Judge in the High Court allowed the same and rejected the plaint. 4. True, that the provision of S.23 ibid suffers from absurdity, ambiguity and inadvertent omission on the part of the drafter because along with the sale the word, ‘purchase’ was not added to the said provision. 5. According to the NWFP (KPK) Pre-emption Act, 1987 this omission is not occurring there. The same is reproduced as under:- CA 1208/11 3 “23. No right of pre-emption in respect of certain properties. –(1) No right of pre-emption shall exist in respect of sale or purchase of— (a) A waqf property or a property used for charitable, religious or public purpose.” In view of the judgment in the case of Government of NWFP v. Malik Said Kamal Shah (PLD 1986 SC 360) majority of the provisions of the Punjab Pre-emption Act, 1913 and that of NWFP (KPK) Pre-emption Act, 1950 were declared against the injunctions of Islam and the governments were directed to amend the law according to the guidelines, given therein so to bring it in conformity with the injunction of Islam. To achieve the object, the Government of the day referred the matter to the Islamic Ideology Council to provide the law for all the provinces, also keeping in view the customs and traditions of each province, not against the injunctions of Islam and after consultation with the Law Division, Government of Pakistan had to forward the same to the governments so that the new draft law is enacted through Legislature. 6. The Islamic Ideology Council, after considerable deliberations with Jurists on “Islamic Fiqa” with regard to right of pre- emption, all ancillary and allied matters and after consultation with the Law Division drafted the proposed law for the provinces and forwarded the same to their respective governments. It was in this background that, the new Pre-emption Act of NWFP (KPK) was notified on 26.04.1987. While the Government of Punjab in the first instance through an Ordinance dated 27.08.1990 promulgated by the Governor of Punjab, enacted the new law, which after making some amendments therein, was passed by the Provincial Legislature and after getting assent of the Governor of the Province, the same was CA 1208/11 4 issued on 6th April, 1991 in the extraordinary Gazette of Punjab Province. 7. In both the Acts of the two provinces, the provision of S.23 thereof provides protection from right of pre-emption to “Waqf” property or a property used or attached to charitable or religious institutions however, in the provision of the NWFP (KPK) Pre-emption Act, as cited above, the words “sale and purchase” both are used however, the word “purchase” is missing from the similar provision of the Punjab Pre-emption Act, 1991. In the same provision of the Punjab Pre-emption Act, S.23(2), the property purchased or acquired by the Federal or the Provincial Government or local authority is also given exemption from pre-emption. This provision was challenged along with some other provisions of the Punjab Pre-emption Act, 1991 before the Federal Shariat Court on the plea that the same were against the injunctions of Islam. A larger Bench of the Federal Shariat Court in the case of Muhammad Ismail Qureshi v. Government of Punjab (PLD 1991 Federal Shariat Court 80) has held as under:- “That the provision of section 23(2) is not repugnant to injunction of Islam as property, which is to be pre-empted, must be owned by a person. That is why, the properties which are Waqf or used for charitable, religious and public purposes are not pre-emptible. On this analogy, the State-owned properties also are not pre-emptible because they are not property of a person. Extending the principle further, a property acquired by the State for public purposes does not remain property of a person or an association of persons. Therefore, a property for public purposes, as envisaged in Shariah, is not pre-emptible.” CA 1208/11 5 8. The learned Judge of the Lahore High Court in the case of Muhammad Farooq v. Muhammad Amin Trust Chakwal (PLD 2007 Lahore 431) also held that “the record did not deny that vendee was a trust or Waqf and purchased the property as such--- Deed of trust was produced which was a registered document------ Purposes of trust were setting up of a hospital on modern lines and to serve people of locality around--- Chairman of vendee Truest appeared as witness and stated that the land was purchased for constructing a hospital.” This statement was not challenged in cross- examination thus, it was held that, “plain reading of S.23(1)(a) of Punjab Pre-emption Act, 1991 showed that prohibition was regarding sale of waqf property or property used for charitable purposes--- Intention however, clearly appeared to save the property purchased for charitable user from rigours of exercise of right of pre-emption.” 9. Now it is to be seen in light of the universally acknowledged cannon of interpretation and construction of Statutes as to what was the intent and object of the Legislature by enacting the provision of S.23 of the Punjab Pre-emption Act, 1991. After going through the injunctions of Islam, as already held by the Federal Shariat Court, exemption from right of pre-emption given to the properties, purchased by the charitable or religious institutions, was the clear intent and object of the Legislature. This was correctly perceived and the drafter has not committed any error while drafting S.23 of the NWFP (KPK) Pre-emption Act, where the words, sale and purchase” both are used. 10. The primary object of the provision of law of the Punjab Pre-emption Act was to protect and save from pre-emption also the properties purchased by these institutions because the property CA 1208/11 6 purchased by it, is used for charitable, religious and public benefit connected therewith and not for monitory or financial gain. If the interpretation, the learned ASC for the appellant suggested, is placed on the said provision of law, in our view, the very intent and object of the Legislature would be defeated. This would be destructive to its implied intent and object it wanted to achieve. 11. Now the question is, whether the Court can supply the omissions through necessary inference till the amendments are made in the relevant provision of S.23 of the Punjab Pre-emption Act. In this regard, the famous Jurists and celebrated Judges of the superior courts of different countries have consistently held that, if there is an occasion where there is inadvertent omission on the part of the drafter and if interpretation on that account is placed in a way to give effect to the omission, not only it will defeat the intention of the Legislature but will also result into harmful drastic consequences. Therefore, in such a case, it becomes imperative for the Courts to fill-up the gap and to supply the omission, so to avoid the obvious destructive effect on the true intent of the Legislature. It is also a bedrock principle of interpretation and construction of Statutes that in a case of ambiguity and absurdity or inadvertent omission, the Court has to make departure from the plain meaning of the Statute and to adopt a construction, which would further and carry the object of the Legislature into effect by resorting to drawing inference therefrom. 12. In the comprehension of a Statute, certain factors cause objective doubts as to the meaning of Legislative text. These are called doubt-factors. The drafters, either due to inadvertent omission or deliberately, avoid to use unnecessary words for the object of brevity. This technique is called ellipsis, meaning thereby that the obvious is to CA 1208/11 7 be provided by implication in such a case. The Courts have the powers to fill-up the lacuna in the Statute through necessary implied addition. 13. It is also a cardinal principle with regard to interpretation of Statute that the Courts have the powers, in cases where there is a manifest contradiction of the apparent purposes of the enactment or the way, the literal construction is likely to lead to a result, not intended by the Legislature, to modify the meaning of the words or to supply the obvious omission due to result of inadvertent mistake on the part of the drafter. This is called a secondary construction of the Statute, where primary construction defeating the purpose of enactment shall be departed from, so to make the Statute sensible by giving effect to the legislative intent. In the cases of inadvertent legislative omissions, defeating the very object of the whole scheme of law, the Courts have the powers to supply the omissions, making the Statute purpose oriented, workable and sensible, by giving effect to the legislative intent. This principle was firmly adopted in wide sense by the Supreme Court in the famous case of Al-Jehad Trust v. The Federation of Pakistan (PLD 1996 SC 324). Similar view was held by the Supreme Court in the case of Mian Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473). 14. In view of the principles, discussed above, and after reading the provision of S.23 of the Punjab Pre-emption Act, 1991 and the entire scheme of the law, we entertain no amount of doubt that the word, “purchase” which is mentioned in the similar provision of the NWFP Pre-emption Act, 1987, has been omitted from the said provision of the Punjab Pre-emption Act, due to mistake, albeit inadvertently on the part of the drafter and while following the above construction and interpretation of Statute on the above principles on CA 1208/11 8 the controversy in issue, it is felt fully justified to supply the omission, rendering the said provision of law meaningful, workable and sensible, so to give effect to the intent of the Legislature. 15. Accordingly, the word “purchase” must be read in the provision of S.23 of the Punjab Pre-emption Act and in the head-notes appended to it. 16. As a result of above conclusion and findings, this appeal is found devoid of all legal merits. Hence the same is dismissed. The impugned judgment of the High Court is upheld. Note: Before concluding this judgment we deem it appropriate that copy of this judgment be sent to the Law and Parliamentary Affairs Department/Ministry, Government of Punjab with the recommendation to bring necessary amendments in the provision of S.23 of the Punjab Pre-emption Act, by adding the word, ‘purchase’ so to avoid future unnecessary litigation in this regard. Early action on the part of the government of Punjab would be appreciated. Judge Judge Islamabad, the 15th December, 2015 Nisar /-‘ Approved For Reporting

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mian Saqib Nisar Mr. Justice Amir Hani Muslim Mr. Justice Iqbal Hameedur Rahman Civil Appeals No. 1213 & 1214/2015. (On appeal against the judgment dated 28.05.2014 passed by the Peshawar High Court, Peshawar, in W. Ps. No. 3857 & 4423/2010) Govt. of KPK through Chief Secretary, Peshawar, etc. (in both cases) Appellant(s) Versus Hayat Hussain, etc. (in C. A. 1213/2015) Abdul Basir, etc. (in C. A. 1214/2015) Respondent(s) For the Appellant(s) (in both cases): Mr. Waqar Ahmed Khan, Addl. AG. For the Respondent(s): In-person. Date of Hearing: 25.02.2016. JUDGMENT Iqbal Hameedur Rahman, J: - Through this single judgment, we intend to decide the listed appeals. The instant appeals are directed against the judgment dated 28.05.2014 passed by the Peshawar High Court, Peshawar, in W. Ps. No. 3857 & 4423/2010 whereby the said petitions filed by the respondents have been accepted. 2. Through the above mentioned writ petitions, the respondents had sought a declaration that orders dated 18.08.2010, 09.09.2010 & 04.10.2010 be declared as illegal, unconstitutional, without lawful authority, ultra vires to their rights and based on malafides and also sought that a direction be given to the appellants to proceed with the process as per the advertisement dated 20.07.2010. The precise facts are that the appellants requisitioned 53 posts in BPS-17 in the Provincial Management C. As. No. 1213 & 1214/2015. 2 Service (PMS). The said requisition was forwarded to the Khyber Pakhtunkhwa Public Service Commission (hereinafter to be referred as “the Commission”), who thereafter advertised the said posts on 20.07.2010. Pursuant to the advertisement, the respondents, Hayat Hussain, Superintendent, KPK Public Service Commission, Peshawar, and Abdul Basir, Office Assistant, Board of Revenue, KPK Peshawar, applied under 10% reserved quota for ministerial staff as per the Provincial Management Service Rules. Later on vide order dated 18.08.2010 it was conveyed by the KPK Establishment Department to the Secretary of the Commission that the matter with regard to 10% reserved quota in PMS (BPS-17) had been examined by the KPK Establishment Department and it is clarified that the same is meant only for ministerial staff serving in the Administrative Departments of KPK Civil Secretariat excluding the employees of attached departments/subordinate offices. The said letter was followed by another letter dated 09.09.2010 wherein it was intimated to the Commission that requisition of 53 posts of PMS officers (under 10th in-service quota) is withdrawn by issuing notification dated 04.10.2010 through which Khyber Pakhtunkhwa Provincial Management Service Rules, 2007 (hereinafter to be referred as “the Rules”) have been amended and 10% reserved quota had been restricted to persons holding substantive posts of Superintendents, Private Secretaries, Personal Assistants, Assistant Senior Scale Stenographers, Stenographers, Data Entry Operators, Computer Operator, Senior and Junior Clerks borne on the cadres strength of Secretariat who possess post graduate qualification from a recognized University with at- least five years service as such. The said orders and notification gave rise to a grievance to the respondents, who being employees of attached departments and who have been excluded from 10% reserved quota as previsouly provided in the Rules as such they had challenged the said C. As. No. 1213 & 1214/2015. 3 orders and notification before the High Court by filing writ petitions contending therein that discriminatory treatment is being given to the them in violation of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, as they were performing the same functions as that of Secretariat employees as such they cannot be excluded because they fulfilled the qualification and experience. The High Court took their contentions into consideration and vide impugned judgment held that they being similarly placed persons have been treated differently as such it constituted a sheer discrimination and further held that it was not a case where rules have been challenged by a person in service rather it was a case where blessings have been given to a class of employees by depriving others through special amendment introduced in the Rules in the garb of interpretation and misinterpretation of rules, which smacks of malafide on the part of the appellants and accordingly struck down the notification dated 04.10.2010 and restored earlier rules framed in the original form as per rule-3 of Schedule-I of the Rules, which entitled the respondent to compete on 10% reserved quota on the basis of competitive examination to be conducted by the Commission from amongst the persons holding substantive posts of Superintendents, Private Secretaries, Personal Assistants, Assistant Senior Scale Stenographers, Stenographers, Data Entry Operators, Computer Operator, Senior and Junior Clerks who possess post graduate qualification from a recognized University with at least five years service under the Government. Being aggrieved, the appellants approached this Court by filing Civil Petitions No. 442-P & 443-P/2014 wherein leave was granted vide order dated 20.11.2015, the relevant portion therefrom is reproduced herein below: - “ The learned Additional Advocate General appearing on behalf of the petitioners contended that it is well beyond the domain of jurisdiction C. As. No. 1213 & 1214/2015. 4 of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan to sit in judgment over the vires of the rules or notifications in view of the judgment rendered in the case titled I. A. Sharwani vs. Government of Pakistan (1991 SCMR 1041) and that the High Court could not impute mala fides to the legislature when there was absolutely nothing on the record as could even remotely suggest that the rules were amended to benefit one and impair the rights of the other.” 3. It would be pertinent to reproduce here the relevant portions of the Rules prior to amendmnet as provided in Schedule-I: - S. No. Nomencl ature of posts Minimum qualificatio n for appointmen t by initial recruitment Age limi t for initi al recr uitm ent Method of recruitment 1 2 3 4 5 1 PMS (BS-17) as per detail at Schedule -II 2nd Division Bachelor Degree from a recognized University. 21- 30 year 1) Fifty per cent by initial recruitment on the recommendations of the Commission based on the result of competitive examination to be conducted by it in accordance with the provisions contained in 3Schecule-VII. 2) Subject to rule7, by promotion in the following manner: (a) twenty percent from amongst Tehsildars, who are graduates, on the basis of seniority-cum-fitness, having five years service as Tehsildar and have passed the prescribed Departmental Examination; and (b) twenty percent from amongst the Superintendents/Private Secretaries on seniority-cum-fitness basis, who are graduate and have undergone a training course of 9-weeks at the Provincial Management Academy/Provincial Staff Training Institute. A joint seniority list of the Superintendents and Private Secretaries shall be maintained for the purpose of promotion on the basis of their continuous regular appointment to the respective posts. 3) Ten percent by selection on merit, on the basis of competitive examination, to be conducted by the Commission in accordance with the provisions contained in 4Schedule-VII, from amongst persons holding substantive posts of Superintendents, Private Secretaries, Personal Assistants, Assistant Senior Scale Stenographers, Stenographers, Data Entry Operators, Computer Operator, Senior and Junior Clerks who possess post graduate qualification from a recognized University with at least five years service under the Government. That according to the original Rules, 10% of selection on merit on the basis of competitive examination was to be made from amongst the persons C. As. No. 1213 & 1214/2015. 5 holding substantive posts of Superintendents, Private Secretaries, Personal Assistants, Assistant Senior Scale Stenographers, Stenographers, Data Entry Operators, Computer Operator, Senior and Junior Clerks who possess post graduate qualification from a recognized University with at least five years service under the Government. From the perusal of the same it is apparent that the same had not been restricted only to Secretariat employees. The Rules have been amended through notification dated 04.10.2010, which reads as under: - “ GOVERNMENT OF KHYBER PAKHTUNKHWA ESTABLISHMENT DEPARTMENT Date Peshawar, the 04.10.2010 NOTIFICATION No. SOE-II(ED) 2(14)/2009: In exercise of the powers conferred by Section 25 of the North-West Frontier Province Civil Servants Act, 1973, (NWFP Act No. XVIII OF 1973), the Chief Minister of the Khyber Pakhtunkhwa is pleased to direct that in the Khyber Pakhtunkhwa Provincial Management Service Rules 2007, the following further amendments shall be made, namely: AMENDMENT In Schedule I, against Serial No. 1 in Column No. 5 for Clause (3) the following shall be submitted, namely: (3) Ten per cent by Selection on merit, on the basis of competitive examination to be conducted by the Commission in accordance with the provisions contained in Schedule VII, from amongst the persons holding substantive posts of Superintendents, Private Secretaries, Personal Assistants, Assistant Senior Scale Stenographers, Stenographers, Data Entry Operators, Computer Operator, Senior and Junior Clerks who possess post graduate qualification from a recognized University with at-least five years service as such. CHIEF SECRETARY KHYBER PAKHTUNKHWA” By virtue of the above mentioned amendment, the respondents being employees of attached departments have been excluded to be eligible for 10% quota selection on the basis of competitive examination. 5. The learned Additional Advocate General for the appellants argued that the said amendment had been made in order to clarify that appointments to the posts of PMS (BPS-17) in 10% quota was meant only for the ministerial staff of the Secretariat so as to encourage talented lower C. As. No. 1213 & 1214/2015. 6 staff. Moreover, the respondents could still compete in open merit as such there was no discrimination. He further argued that the appellants were duly competent to amend the Rules and the Rules were amended strictly in accordance with law. 6. On the other hand, the respondents appearing in-person submitted that through the amendment they were deprived of their right. They further submitted that the Secretariat employees are already covered under Schedule-I subsection 2)(b) for promotion as such the 10% quota actually meant for other attached departments. 7. In the facts and circumstances of the case and in the light of the arguments advanced by the learned Additional Advocate General as well as the respondents in-person, it is to be considered whether amendment in the Rules could be effected by the Government regarding restricting the reservation of 10% quota only for ministerial staff of Civil Secretariat KPK and whether it is justifiable, secondly, whether amendment was malafidely made in order to exclude and deprive the respondents from future prospects of their promotion moreso when they are performing the same functions and duties as such whether it is a discrimination and do the respondents have a vested right to challenge the same. In the above perspective, whether the High Court has the jurisdiction in the matter to strike down rules relating to Civil Servants regarding their appointment and promotions and amendments made therein. The stance of the appellants is that amendment in the relevant provisions of the Rules was quite justified as the employees of attached departments get sufficient chances of promotion in their cadres against the quota reserved specifically for them under their respective service rules, whereas the employees of Civil Secretariat cannot appear in those examinations, for instance the Sub Accountants in the District Accounts Offices accorded promotion after qualifying SAS examination. C. As. No. 1213 & 1214/2015. 7 Similarly, the Junior Instructors (BS-14) of Technical Education Department with diploma of Engineering i.e., equal to FA/F.Sc are promoted to BS-17 within 5 to 10 years period. Likewise, Sub-Engineers (BS-11) of C&W, PHE and Irrigation Department having B.A. degree are considered or accelerated promotion to the post of Assistant Engineer (BS- 17) after qualifying the departmental exam prescribed under their respective service rules, as such the respondents are entitled to get further promotion to the post of PMS BS-17 in their own service cadre. Further justification given by the appellants was that the ministerial staff of Civil Secretariat is transferable in different departments of Civil Secretariat which make them well acquainted with the nature of job of PMS Officers. Whereas, the employees of other departments/cadre are experts in their own field and their job profile is quite different from that of PMS Officers. Thus reserving 10% quota for ministerial staff of Civil Secretariat is justified as these posts cannot be used as learning place for others. 8. It is a settled proposition of law that the Government is entitled to make rules in the interest of expediency of service and to remove anomalies in Service Rules. It is the Service Rules Committee which has to determine the eligibility criteria of promotion and it is essentially an administrative matter falling within the exclusive domain and policy decision making of the Government and the interference with such matters by the Courts is not warranted and that no vested right of a Government employee is involved in the matter of promotion or the rules determining their eligibility or fitness, and the High Court has no jurisdiction by means of writ to strike it down as held by this Court in the case of The Central Board of Revenue, Government of Pakistan vs. Asad Ahmad Khan (PLD 1960 SC 81), the relevant portion therefrom is reproduced herein below: - C. As. No. 1213 & 1214/2015. 8 “ In our opinion the High Court made the above order without taking into consideration all the factors relevant to the case, namely, in the first place the taking out of the post of Deputy Superintendent of the category of class III, to which the petitioners belong amounted to abolition of the post and its upgrading on a higher scale of pay to a creation of the new post; appointment to which required a stricter test of efficiency by a competitive examination. Besides, all the Inspectors were given the right to sit in the examination for any number of times to qualify themselves for promotion. At the same time the pay scale of those, who could not succeed, was raised to the limit of Rs. 350, namely, the same pay as that of a Deputy Superintendent when it was a class III post. In the circumstances it cannot be said that any rights of the petitioners were infringed, which they could enforce by a writ petition. The Government has every right to make rules to raise the efficiency of the services, and if no vested right is denied to a party, the High Court had no jurisdiction to interfere by means of a writ.” (emphasis supplied) As far as the contention of the respondents that the rules could not be changed to affect them adversely is concerned, the said proposition has also been settled by this Court in the case of Muhammad Umar Malik and others vs. Federal Service Tribunal and others (PLD 1987 SC 172), wherein the proposition that the rules of promotion could not have been changed so as to affect adversely those already on the eligibility list i.e., combined list of U.D.Cs and S.G.Cs, was repelled by observing that, “No such vested right in promotion or rules determining eligibility for promotion exists”, and held as under: - “ Mr. Abid Hasan Minto, Advocate, when called upon to address arguments on merits, urged that the rules of promotion should not have been changed so as to affect adversely those already on the eligibilities list i. e. the combined list of the U.D.Cs. and S.G.Cs. In other words he was claiming a vested right in promotion for all the U.D.Cs. borne on the joint cadre on the date of its separation. The position of law on the subject is clear in view of numerous decisions of this Court, e.g. Government of West Pakistan v. Fida Muhammad Khan (1) Central Board of Revenue, Government of Pakistan v. Asad Ahmad Khan (2), Province of West Pakistan v. Muhammad Akhtar (3), Manzur Ahmad v. Muhammad Ishaq (4). No such vested right in promotion or rules determining eligibility for promotion exists.” C. As. No. 1213 & 1214/2015. 9 9. In the facts and circumstances of the case and in the light of the case law cited above, it is quite apparent that the advertisement earlier made had subsequently been withdrawn and thereafter an amendment was made in the Rules and as yet the respondents have not appeared either in the examination or in any interview or selection, therefore, there appears to be no vested right created in their favour, and accordingly any change made in the Rules cannot furnish a cause to the respondents. Moreover, the amendment was made in the Rules in order to clarify certain anomalies, which had duly been taken care of, as such no malafide can be attributed to the Government and as per the settled principle the determination of eligibility of the respondents through amendment fully falls within the domain and policy decision of the Government which does not warrant interference by the Courts. Resultantly, these appeals are allowed and the impugned judgment of the High Court is set aside. Judge Judge Judge ISLAMABAD 25.02.2016 (Farrukh) Approved for Reporting.

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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 APPEAL NO. 1219 OF 2014 (On appeal against the judgment dated 19.9.2014 passed by the Election Tribunal-II, Quetta in Election Petition No. 178/2013) Khalid Hussain Magsi … Appellant VERSUS Mir Abdul Rahim Rind and others … Respondents For the Appellant: Kh. Saeed-uz-Zafar, ASC Mr. Muhammad Dawood Kasi, ASC For the Respondent (1): Syed Iftikhar Hussain Gillani, Sr. ASC Date of Hearing: 03.02.2016 JUDGMENT FAISAL ARAB, J.- In the General Elections that were held on 11.5.2013, the appellant and respondent No. 1 were the main contesting candidates from National Assembly seat NA-267 Kachi- cum-Jhal Magsi. For 1,47,595 registered voters of this constituency, the Election Commission setup 165 polling stations. In all 90728 votes were polled out of which 2448 were rejected for one reason or the other, leaving the tally of valid votes to 88280. The appellant bagged 42240 votes (48%) and the respondent No. 1 bagged 38915 votes (44%). Between them they both bagged 92% of the total valid votes that were cast in the constituency. Leading with a margin of 3325 votes the appellant was declared returned Civil Appeal No. 1219/2014 2 candidate. The respondent No. 1 was not satisfied with the result. He alleged rigging on the part of the appellant and filed an election petition before the Election Tribunal, Quetta. The challenge was mainly based on two grounds i.e. (i) at the behest of the appellant, the District Returning Officer and Returning Officer were changed without prior notice to any of the contesting candidates and (ii) polling agents of respondent No1 were detained for the entire duration of the polling time which facilitated the appellant to cast bogus votes on 40 polling stations. 2. During pendency of the election petition, the respondent No.1 filed an application before the Election Tribunal seeking verification of thumb impressions of the voters of 40 disputed polling stations through biometric system of NADRA. This application was granted. Record reflects that the counterfoils and the ballot papers of 39 polling stations were dispatched to NADRA for verification. NADRA then submitted its report. In the report, it was stated that out of 30,649 votes that were cast on 39 disputed polling stations, there were no CNIC numbers on 2143 counterfoils; 40 votes were not even registered in the constituency; 783 votes were found to be issued more than once; counterfoils of 151 votes did not have fingerprints on them and fingerprints on 4438 counterfoils could not be authenticated through biometric system. Hence, doubt was cast on 7555 votes by NADRA that were polled on 39 disputed polling stations. The Election Tribunal after recording evidence and hearing both the parties, allowed the election petition and ordered fresh election in the constituency. Civil Appeal No. 1219/2014 3 Aggrieved by this decision, the appellant has filed the present appeal. 3. Learned counsel for the appellant raised preliminary objection to the maintainability of respondent No.1’s election petition before the Election Tribunal on the ground that the same was not verified on oath before the oath commissioner as required under Section 63 of the Representation of the Peoples Act, 1976. He relied upon judgments rendered in the cases of S.M.Ayub Vs. Yusuf Shah (PLD 1967 Supreme Court 486), Iqbal Zafar Jhagra Vs. Khalilur Rehman (2000 SCMR 250) and Ghazanfar Abbas Shah Vs. Mehr Khalid Mehmood Sargana (2015 SCMR 1585). Learned counsel for the appellant elaborated his argument on the preliminary objection by stating that election petition was signed on 2.7.2013 whereas the verification stamp of the oath commissioner is dated 3.7.2013, which clearly shows that the oath was not administered to the respondent before the oath commissioner. On merits, learned counsel for the appellant argued that the allegation against the appellant was that his two brothers detained the polling agents of the respondent No. 1 from going to their respective polling stations, which was practically not possible as two persons cannot prevent 40 polling agents from going to their respective polling stations of the constituency which was spread over about 200 kilometres. He also argued that the doubt cast by the NADRA on the validity of about 7555 votes does not mean that these votes were cast in favour of the appellant or that it was the appellant who indulged in any kind of rigging. Civil Appeal No. 1219/2014 4 4. In response to the maintainability of election petition, the learned counsel for the respondent No. 1 argued that many a times date is printed on the petition but the same is presented for verification on oath on any subsequent date, therefore, the difference of one day between the printed date and the date on which the petition was actually verified on oath does not mean that no oath was administered to the respondent by the oath commissioner. He contended that the words ‘sworn before me’ superimposed on the last page of the memo of election petition sufficiently demonstrate that the petition was duly verified. He further contended that not only this but a separate affidavit of service was also sworn by the respondent on oath, which was appended to the election petition and this also clearly establishes that all the requirements of law with regard to the verification of election petition were fulfilled. 5. With regard to the preliminary objection, all that we have to see is whether the memo of petition do reflect that the same was verified on oath and this is duly confirmed from the endorsement of the oath commissioner. The memo of petition clearly reflects the date of verification in the handwriting of the oath commissioner and also contains his stamp ‘sworn before me’. Hence, the election petition is to be taken as duly verified on oath. 6. As to the merits of the allegation, no doubt that nothing has come on record to establish that respondent No. 1’s polling agents were physically prevented from going to the polling Civil Appeal No. 1219/2014 5 stations. However, we have scrutinized the data of Form XVI which is a consolidated statement of the results of the vote-count of the entire constituency. From the consolidated statement it is apparent that on 54 polling stations, where one of the two contesting candidate had obtained no vote at all, the other contesting candidate had obtained almost all votes that were polled. It would be of considerable advantage to reproduce the data of the above referred 54 polling stations with the percentiles of votes that were cast in favour of each of the two main contesting candidates and then analyze the same. Result of 21 out of above referred 54 polling stations where appellant obtained zero votes: S. No. Polling station Appellant’s Votes Respt No1 Votes Total of valid votes cast Percentage of rspdt No. 1’s Votes 1 Dispensary Rind Ali Balina (Female) (P) 0 242 277 87.3% 2 Girls M/s Challgari (Female) (P) 0 415 443 93.7% 3 Haft Wali Balina (Combined) (P) 0 319 321 99% 4 P/S Kot Misri (Combined) (P) 0 1034 1034 100% 5 P/s Siah Pad (Combined) (P) 0 1056 1057 99.9% 6 P/S Sarkandhar (Combined) (P) 0 2399 2400 99.9% 7 Dispensary Shoran (Male) (P) 0 799 799 100% 8 Girls P/S Shoran (Female) (P) 0 469 469 100% 9 P/S Chalwani (Combined) (P) 0 623 623 100% 10 Boys H/S Shoran (High Section (Combined) (P) 0 1497 1497 100% 11 Boys H/S Shoran (High Section (Combined) (P) 0 1140 1140 100% 12 M/S Muan Shoran (Combined) (P) 0 1290 1292 99.9% 13 Boys P/S Azadi (Combined) (P) 0 1000 1000 100% 14 P/S Esbani (Female) (P) 0 567 650 87.2% 15 Improvised Eisbani (Male) (T) 0 900 900 100% 16 P/S Eri Tunia (Combined) (P) 0 2143 2145 99.9% 17 P/S Tendo Gulab (Combined) (P) 0 1237 1240 99.8% 18 P/S Godri (Combined) (P) 0 1033 1037 99.6% 19 P/S Arzi (Combined) (P) 0 2540 2540 100% 20 P/S Jhok Shahbaz (Combined) (P) 0 1505 1505 100% 21 P/S Siyanch (Combined) (P) 0 749 749 100% Total votes 23118 Civil Appeal No. 1219/2014 6 Result of 33 out of above referred 54 polling stations where respondent No.1 obtained zero votes: S. No. Polling station Appellant’s Votes Respondt No.1’s Votes Total valid votes cast Percentage of votes secured by rspdt No. 1 1 P/S Mehr Ghar (Combined) 225 0 228 98.7% 2 Girls H/S Mithri (Female) (P) 898 0 899 99.89% 3 Boys H/S Jhall Magsi (Male) (P) 1340 0 1340 100% 4 Girls H/S Jhall Magsi (Female) (P) 1261 0 1261 100% 5 Boys M/S Jhall Magsi (Combined) (P) 1483 0 1498 99% 6 Boys H/S Sarghani (Male) (P) 702 0 702 100% 7 Basic Health Unit Sargani (Female) (P) 698 0 698 100% 8 Boys M/S Kabbar (Combined) (P) 747 0 756 98.8% 9 Govt P/S Kochho (Ghulam Rasool Burghrani) (Combined) (P) 494 0 496 99.9% 10 P/S Khas Kheli (Combined) (P) 960 0 960 100% 11 Boys M/S Khichi Jadeed (Combined) (P) 740 0 740 100% 12 Boys P/S Amir Abad (Combined) (P) 724 0 724 100% 13 Boys M/S Band Mehmood (Combined) (P) 427 0 427 100% 14 Boys M/S Shahmir Khan (Combined) (P) 733 0 735 99.7% 15 Boys H/S Sakhani (Combined) (P) 1177 0 1177 100% 16 Boys H/S Kot Magi (Combined) (P) 1104 0 1104 100% 17 Boys H/S Chokhi (Combined) (P) 837 0 837 100% 18 Boys M/S Panjuk (Combined) (P) 1007 0 1008 99.9% 19 Boys M/S Khan Pur (Combined) (P) 315 0 315 100% 20 Boys P/S Bet Siddique (Combined) (T) 625 0 625 100% 21 Boys M/S Safrani (Combined) (P) 878 0 883 99.4% 22 Boys P/S Mat Kaloo Goth Shafi Mohammad (Combined) (T) 559 0 559 100% 23 Boys M/S Hathyari (Combined) (P) 1428 0 1430 99.9% 24 Boys M/S Matt Sindhurr (Combined) (P) 1038 0 1044 99.4% 25 Boys H/S Barjia (Combined) (P) 1161 0 1163 99.8% 26 Girls P/S Barjia (Combined) (P) 800 0 801 99.9% 27 Boys H/S Shambani (Combined) (P) 933 0 933 100% 28 Boys P/S Kohna Shadiharr (Combined) (P) 592 0 597 99.1% 29 Boys P/S Korjia (Combined) (T) 781 0 781 100% 30 Boys P/S Saif Abad (Male) (P) 1156 0 1156 100% 31 Civil Dispensary Saif Abad (Female) (P) 500 0 500 100% 32 Boys M/S Dhorri (Combined) (P) 840 0 840 100% 33 Boys M/S Mitho (Combined) (P) 589 0 589 100% Total votes 27806 Civil Appeal No. 1219/2014 7 7. From the above two tables containing vote count of 54 polling stations, it is surprising to note that on 21 polling stations where the appellant obtained not a single vote, the respondent No.1 bagged 98.4% of the total votes that were cast. Similarly, on the remaining 33 polling stations where respondent No. 1 obtained not a single vote, the appellant bagged 99.8% of the total votes cast. It is also surprising to note that in the above discussed 54 polling stations, in all 50,922 votes were polled, the average of vote count comes to 943 votes per polling station whereas in the rest of 111 polling stations, where the remaining 37,358 votes were polled, this average stands at only 337 votes per polling station. The first question that comes to our mind is why on the above referred 54 polling stations where one contesting candidate had not even bagged a single vote, the percentage of polled votes in fovour of the other is phenomenal i.e. around 99%. The other question that arises is why on these 54 polling stations the turnout was almost triple in comparison to turnout on the rest of 111 polling stations i.e. the percentage of turnout on the above mentioned 54 polling stations was 96% whereas turnout in the remaining 111 polling stations stood around 40% only. These unimaginable differences in the voting pattern on 54 polling stations as against the remaining 111 polling stations cannot be a simple case of mere coincidence, given the fact that both the contesting candidates were not candidates with marginal following. They were politically popular figures of the constituency as 92% of the total votes that were polled went to both of them only. When the issue is analysed from this perspective, the preponderance of Civil Appeal No. 1219/2014 8 probabilities leads us to believe that both the candidates must have exerted their respective political clout in their respective areas of influence in order to bag maximum number of votes. 8. The analysis of above referred data, gathered from Form XVI, overshadows the submissions of the counsel of both the parties which they had advanced in favour of their respective clients as the polling data speaks louder than the words. This analysis of Form XVI coupled with the findings of NADRA in its report, where 7555 votes have been made doubtful as against returned candidate’s winning margin of only 3325 votes, confirms the prevalence of illegal practice at the election. We are, therefore, satisfied that the election to the National Assembly seat NA-267 Kachi-cum-Jhal Magsi was not conducted in fair manner and is liable to be declared as a whole void in terms of Section 70(b) of the Representation of the Peoples Act, 1976. This appeal fails and is hereby dismissed. JUDGE JUDGE JUDGE Islamabad, the Announced on ______________ Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Yahya Afridi CIVIL APPEALs NOs.1219 TO 1222 OF 2015 (On appeal from the judgment/order dated 30.07.2015 passed by Federal Service Tribunal, Islamabad in Appeal No.460(R)CS to 461(R)CS of 2013) & CIVIL APPEALs NOs.248 TO 251 OF 2018 Chairman, Federal Board of Revenue, Islamabad … Appellant (CAs.1219 -1220 of 2015 & C.As.248-251 of 2018) Muhammad Mohsin Rafiq & others … Appellants (CAs.1221&1222 of 2015) Versus Mrs. Naureen Ahmed Tarar and others … Respondents (in CA.1219 & 1221/2015) Mrs. Ambreen Ahmed Tarar, etc. … Respondents (in CA.1220 & 1222/2015) Muhammad Junaid Jalil and others … Respondents (in CA.248/2018) Syed Shakeel Shah & others … Respondents (in CA.249/2018) Dr. Iftikhar Ahmed & others … Respondents (in CA.250/2018) Muhammad Saleem & others … Respondents (in CA.251/2018) For the appellants (CAs.1219 -1220 of 2015 & C.As.248-251 of 2018) : Hafiz S.A.Rehman, Sr. ASC. For the appellants (CAs.1221 -1222 of 2015) : Mr. Mahmood Ahmed Qazi, ASC. Respondent No.1 (CA.1219 & 1221 of 2015) : In-person. For respondents (20-21) (CA.1219-1220 of 2015) : Ch. Abdul Sattar, ASC. Respondents (No.3, 5, 7, 13, 17-19, 22, 23) (CA.1219-1220 of 2015) : Ex-parte CA.1219/2015, etc. 2 For Respondent No.1 (CA.1220 &1222 of 2015) : Rana Asif Saeed, ASC. For Respondents (No.2, 4, 6, 8-12, 14-16) (CAs.1219-1220 of 2015) : Mr. Mehmood Ahmed Qazi, ASC. For respondents (11&12) (CA.1221 of 2015) : Ch. Abdul Sattar, ASC. Respondents (No.2-10, 13) (CA.1221 of 2015) : Ex-parte For respondents (10&11) (CA.1222 of 2015) : Ch. Abdul Sattar, ASC. Respondents (No.2-9 & 12-14) (CA.1222 of 2015) : Ex-parte For Respondent No.1 (CA.248-251 of 2018) : Mr. M. Shoaib Shaheen, ASC. For Respondents (7-8) (CA.248-250 of 2018) : Kh. M. Farooq, Sr. ASC. Syed Rifaqat Hussain Shah, AOR. For Respondents (5-6) (CA.251 of 2015) : Kh. M. Farooq, Sr. ASC. Syed Rif aqat Hussain Shah, AOR. Date of hearing : 20.02.2019. O R D E R UMAR ATA BANDIAL, J. C.M.As. NOs.1560 & 1562 OF 2019. These Misc. Applications for setting aside ex-parte order dated 10.12.2012 passed against the respondents mentioned therein are allowed. The respondents may join these proceedings subject to all just and legal exceptions. 2. CIVIL APPEALS NO.1219 TO 1222 OF 2015. Leave was granted in these appeals vide order dated 23.11.2015 in the following terms: “We have read the relevant rules. The question whether determination of seniority could in any way be linked with the passing of exams in first, second and third attempt or it is their qualification CA.1219/2015, etc. 3 simpliciter, which matters in this behalf. The points raised require consideration. We, therefore, grant leave in these cases.” 3. The dispute between the parties concerns the seniority of probationers qualifying in the 25th Common Group who have been placed in the Customs & Excise Group. Their terms and conditions of service as probationers is laid down in Section 6 of the Civil Servants Act, 1973 (“Act”). Section 25 of the Act empowers the competent authority to frame rules for carrying out the purposes of the Act. The Occupational Groups and Services (Probation, Training and Seniority) Rules, 1990 (1990 Rules) were framed by the competent authority, inter alia, for regulating the fixation of the seniority among probationers after their Final Passing Out Examination (“FPOE”). At the time when the initial appointment of the members of 25th Common Group was notified on 11.07.1998, the 1990 Rules as originally framed were still in vogue. However, during the period of probation of the 25th Common Group commencing in July, 1998 and ending on 13.08.2003, these rules underwent amendment on 28.04.2001. A substantial change in the method of reckoning seniority was introduced by the amendment. This was done by including the number of attempts availed by a probationer to clear the three specialized training examinations as one of the criteria for determining seniority. The relevant amendment was made in sub- Rule (2) of Rule 6 of the 1990 Rules which is reproduced below: (2) A probationer who does not qualify in the Final Passing Out Examination shall: (a) lose his one increment if he fails in the first attempt. CA.1219/2015, etc. 4 (b) be relegated in seniority to the bottom of his batch if he fails in the second attempt; and (c) be discharged from the service under clause (a) of sub-section (2) of section 6 of the Civil Servant Act, 1973, if he fails in the third attempt.” 4. Prior thereto the seniority of the probationers at the end of successful passing of their training examinations was provided in Rule 7(4): 7. Seniority. … (4) For the purpose of determining the inter-se seniority of the probationers who commence their training with initial training programme the marks obtained by a probationer in the competitive examination of the Commission or his notional marks, as the case may be, shall be added to the marks obtained by him in the initial training programme, specialized training programme and the marks obtained by qualifying the Final Passing Out Examination in his first attempt. 5. The additional criterion of the number of attempts availed by a probationer for fixing his seniority in the batch was implemented in the present case by the provisional seniority list issued on 03.06.2008. The same criteria were adopted again for arriving at the final seniority list issued on 21.12.2012 by the appellant-department. These seniority lists were challenged by respondent No.1 in appeals before the departmental authority and thereafter before the learned Service Tribunal. The Tribunal held in favour of the respondents on the ground that the amendment in the Rules had been applied retrospectively. More particularly, the private respondents in the present lis are all members of the CA.1219/2015, etc. 5 Customs & Excise Group from the 25th Common. They were promoted to BS-18 by FBR on regular basis vide notification dated 13.08.2003. Therefore, it is contented that the 1990 Rules which deal with probationers had ceased to apply to them. Consequently, the two seniority notifications referred to above had been wrongly framed. It may be pointed out that the promotion notification dated 13.08.2003 was based solely on the result of the first CSS exam notified by Federal Public Service Commission and made no reference to the results secured by the probationers in the subsequent examinations held during their probationary training to assess their merit and capability. 6. Before us, the only dispute is whether the amendment made on 28.04.2001 in the 1990 Rules (“2001 amendment”) reproduced above applies to the present case or not? The respondent No.1, who has addressed the Court in-person, however, went further to claim that the 1990 Rules should not be applied to determine inter se seniority of the batch mates. Instead the result of the CSS examination should be treated as the basis of seniority of the probationers as already done by notification dated 13.08.2003 pursuant to which the batch as a whole was promoted to BS-18. 7. We have heard the learned counsel for the parties. Just to give an idea of the several anomalies that are apparent in the final seniority list dated 21.12.2012, a copy thereof is placed herein below: CA.1219/2015, etc. 6 Perusal of the above list reveals that respondent No.1 is at Sr. No.18 thereof. She secured a total of 1748.35 marks in the (CSS, CTP, STP and FPOE) competitive examinations that were held. On the strength of her total marks she ought to be at Sr. No.10 of the list, next after Muhammad Jamil Nasir, who secured a total of 1751.63 marks. However, on account of the weightage attached to the number of examination attempts by the 2001 amendment, the respondent No.1 was relegated to Sr. No.18 because she passed her FPOE in the second attempt. Another respondent, Mrs.Ambreen Tarar, stands at Sr. No.23 of the list having secured a total of 1744.1 marks, but is placed below Mr. Khaleel Ibrahim Yousfani, who secured a total of 1629.1 marks. If the seniority CA.1219/2015, etc. 7 position was to be based purely on the number of total marks, then Mrs. Ambreen Tarar would have ranked at Sr. No.11 just below Mrs. Naureen Ahmad Tarar. However, she is at Sr. No.23 because she passed the FPOE in her 3rd attempt. 8. The learned Service Tribunal has also commented upon the disproportionate weightage given to the number of attempts resulting in a substantial change in the final seniority position of the probationers. However, we are of the considered view that the present matter may be decided on a fair basis solely by considering the legal aspects and implications of the probationary period of the private respondents that started on 11.07.1998 and concluded on 13.08.2003. The 2001 amendment whereby the number of attempts was made a criterion of seniority was promulgated on 28.04.2001 during the term of the probationary period of the private respondents. As a result of the 2001 amendment the seniority position of the private respondents is claimed to have been affected adversely. Seniority in service is a valuable right and the private respondents in the present lis had a legitimate expectancy that the probationary service law prevalent at the time when they entered their probation shall remain in force until their confirmation. The principle of legitimate expectancy aims at enforcing fairness and preventing arbitrariness. It was cogently articulated by the UK House of Lords in the case of Council of Civil Service Unions and others vs. Minister for the Civil Service [1984] 3 All ER 935 wherein it was held that: “To qualify as a subject for judicial review the decision must have consequences which affect some person … either (a) by altering rights or obligations of CA.1219/2015, etc. 8 that person which are enforceable by or against him in private law or (b) by depriving him of some benefit or advantage which either (i) he has in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been given an opportunity to comment or … advancing reasons for contending that they should not be withdrawn.” 9. This rule of fairness and non-arbitrariness is recognised in our jurisprudence to mean that an advantage or benefit derived from a competent legal dispensation, departmental practice or established procedure that has been extended to and enjoyed by a person may legitimately be expected to remain available unless notice or opportunity to defend or adjust his position is given to that person. Discussion on the subject is available in Regarding pensionary benefits of the Judges of Superior Courts (PLD 2013 SC 29 at p.1008) and Al-Jehad Trust vs. Federation of Pakistan (PLD 1996 SC 324). A useful discourse is also made in Union of India vs. Hindustan Development Corporation (AIR 1994 SC 988). 10. There is no doubt that the ranking of passing probationers on the basis of the number of their attempts made to clear the prescribed examinations imposes a penal liability through loss of seniority. The change in law by the 2001 amendment therefore causes adverse consequences for the probationers. These consequences infringe the legitimate expectancy of the serving probationers by altering the legal dispensation under which firstly, their service rights are determined for the future and secondly, for changing the rules under which private respondents commenced CA.1219/2015, etc. 9 their probationary training. Though procedural in content, the 2001 amendment affected a substantive right of the probationers, namely, their seniority in the batch and in this respect by altering an accrued status, the said amendment had retrospective effect. Resultantly it is burdensome to implement the 2001 amendment upon the probationers who had already entered their probationary period prior to the enforcement of the said amendment. 11. There is also the additional fact that one of the examinations envisaged in the 1990 Rules, namely, the STP, could not be held. This failure makes the categorization of the total result on the basis of number of examination attempts to be irrational and lopsided. The existing circumstances of incomplete examinations to test the probationers and the enforcement of the disputed 2001 amendment to an ongoing probationary course, have resulted in harsh and untenable consequences both in law and fact. This in itself provides justification to exclude the 2001 amendment from application in the present case. However, it cannot mean, as opined by the learned Tribunal, that the 1990 Rules should as a whole cease to apply to determine the inter se seniority of probationers on the eve of their confirmation. The 1990 Rules are specially framed to deal with service terms and conditions of probationers. Their application is necessary for determining the rights and ranking of probationers at the time of their confirmation. Therefore, these Rules being a special law cannot be excluded from operation. However, on the principle of legitimate expectation and for the fact of the failure by the administrative authorities to complete the examination process CA.1219/2015, etc. 10 envisaged in the 1990 Rules, it is harsh and unfair to implement amended Rule 6 of the 2001 amendment in its totality. 12. As a result, we hold that the 1990 Rules in their (unamended) form as at the commencement of the probationary period in July, 1998 shall remain applicable for reckoning the seniority of the private respondents on the completion of their probation in BS-17. The judgment of the learned Service Tribunal is accordingly modified to the foregoing extent. The observations made by the learned Service Tribunal about the workability of the 1990 Rules post the 2001 amendment are endorsed and for this purpose, the Federal Government needs to apply its mind to remove the salient anomalies highlighted by the learned Tribunal that exist in the application and implementation of the said rules. These appeals are partially allowed in above terms. 11. CIVIL APPEALs NOs.248 OF 251 OF 2018. Since distinct questions of law and facts, as compared to the one raised and decided herein above, are involved in these appeals, therefore, they are adjourned to be heard separately. JUDGE Islamabad, 20.02.2019. Irshad Hussain/* JUDGE APPROVED FOR REPORTING.

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE QAZI FAEZ ISA CIVIL APPEAL NOs. 1242 TO 1245 OF 2013 (On appeal from the judgment dated 26.2.2013 passed in Writ Petition Nos. 5992 of 2010, 8870 of 2010, 8873 of 2010, 4162 of 2010 and 31331 of 2012 passed by the Lahore High Court, Lahore) Tariq Khan Mazari (in C.A. No. 1242/2013) M/s Punjnad Sugar Mills Limited (in C.A. No. 1243/2013) Arshad Javed Ahmed (in C.A. No. 1244/2013) Begum Syeda Iqbal (in C.A. No. 1245/2013) ….Appellants Versus 1. Government of Punjab through Secretary Industries and others 2. Secretary Industries, Lahore 3. Assistant Economic Advisor-III, 4. JDW Sugar Mills Limited, Lahore. ….Respondents (in all cases) For the Appellants : Khawaja Muhammad Farooq, (in CA.Nos. 1242 & 1244/2013) Senior Advocate Supreme Court Syed Rifaqat Hussain Shah, Advocate-on-Record For the Appellant : Mr. Noor Muhammad Chandia, (in CA No. 1243/2013) Advocate Supreme Court Ch. Muhammad Anwar Khan, Advocate-on-Record (absent) For the Appellant : Mr. Haq Nawaz Chattha, Advocate Supreme Court (in CA No. 1245/2013) Mr. Faiz-ur-Rehman, Advocate-on-Record For Respondent Nos. 1 & 3 : Mr. Mudassar Khalid Abbasi, Assistant Advocate General Punjab Rao Muhammad Yousaf Khan, Advocate-on-Record (absent) For Respondent No.4 : Mr. Sikandar Bashir Mohmand, Advocate Supreme Court Mr. Tariq Aziz, Advocate-on-Record (absent) On Court Notice : Mr. Sohail Mehmood, DAG C.As. 1242 to 1245/2013 2 In Attendance : Mr. Aitzaz Ahsan, Senior Advocate Supreme Court : Mr. Salman Akram Raja, Advocate Supreme Court Dates of hearing : 22nd & 23rd June 2016 JUDGMENT QAZI FAEZ ISA, J.- Through a common judgment dated 26th February 2013 of the Lahore High Court at Lahore a number of writ petitions were dismissed including those filed by the appellants herein. This Court through the following order granted leave to appeal against the impugned judgment: “Leave is granted to consider the scope of the provisions of Sections 3 and 11 of the Punjab Industries (Control on Establishment & Enlargement) Ordinance, 1963 (the Ordinance, 1963); whether the government has any power under the aforesaid provisions of law to impose a ban upon the establishment/enlargement of sugar industry as has been done by notification dated 6th December, 2006 and in this context the application of the petitioner has been dismissed by the Secretary, Government of Punjab, Industries Department on 24.1.2011; the correctness of the law enunciated in the judgment reported as Madina Sugar Mills Vs. Secretary, Ministry of Industries and others (PLD 2001 Lahore 506) and the effect of the judgment reported as Arshad Mehmood and others Vs. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others (PLD 2005 SC 193) upon the facts of this case in relation to the Ordinance, 1963.” It may however be clarified that The Punjab Industries (Control on Establishment and Enlargement), Ordinance, 1963 was promulgated by the Governor of West Pakistan on 25th January 1963 and was approved by the Provincial Assembly of West Pakistan with amendments on 27th March 1963 and after receiving the assent of the Governor was published in the West Pakistan Gazette (Extra Ordinary) dated 27th March 1963 at pages 1269-1272 as The Punjab Industries (Control on Establishment and Enlargement), Act, 1963. Notices were also issued to the Attorney General for Pakistan and the Advocate General of Punjab under Order XXVII-A of the Code of Civil Procedure. 2. Khawaja Muhammad Farooq, the learned senior counsel representing the appellants in C.A. Nos. 1242 and 1244 of 2013, Mr. Noor Muhammad Chandia, the learned senior counsel representing the appellant in C.A. No. 1243 of 2013 and Mr. C.As. 1242 to 1245/2013 3 Haq Nawaz Chattha, the learned counsel representing the appellant in C.A. No. 1245/2013, have assailed the judgment of the High Court. They stated that the appellants had challenged the Notification dated 6th December 2006 (“the impugned Notification”) issued by the Industries Department of the Government of Punjab, which had imposed a complete ban on the setting up of new sugar mills and enlarging the installed capacity of existing sugar mills in the Province of Punjab. This was done by inserting a new clause 3 in the earlier Notification dated 17th September 2002. The learned counsel stated that though the impugned Notification was issued under section 11 read with section 3 of the Punjab Industries (Control on Establishment and Enlargement), Act, 1963 (“the Act”) neither of these sections of the Act, or for that matter any other section, envisaged such a ban therefore the same was ultra vires of the Act and of no legal effect. It was next contended that an application, seeking permission to establish or expand an industrial undertaking, should be dealt with under section 3 of the Act and can only be rejected after first giving a person an opportunity of showing cause against it or if the grant of the permission is prejudicial to the national interest or it is either injurious to health or could be a source of nuisance for the residents of the local area in which the industrial undertaking is proposed to be set up or expanded and not by simply referring to the impugned Notification. 3. Mr. Noor Muhammad Khan, the learned counsel for the appellant in C.A. No. 1243 of 2013, added to the above contentions by stating that his client had placed reliance upon the Notification dated 15th July 2005, which had permitted the establishment of new sugar mills up to a capacity of 16,000 TCD (tons crushing per day), consequently, the appellant-company was set up to establish a sugar mill with a capacity of 8,000 TCD and it had purchased 255 kanals of land, had applied to a financial institution for provision of finances, and made payment of an amount of two hundred thousand rupees to the financial institution as processing fee. He also referred to the earlier Writ Petition No. 8473/2007 filed by the appellant-company before the Lahore High Court which was dismissed vide order dated 16th April 2008, C.As. 1242 to 1245/2013 4 by holding that the appellant had, “an alternate remedy of filing an appeal before the competent authority”. The order of the High Court was impugned in Intra Court Appeal No. 130/2008 which was disposed of vide order dated 26th May 2008, the operative part whereof is reproduced hereunder: “2. Having examined the writ petition file and the impugned judgment, we find that the original order i.e. dated 27.8.2007 (Annex-B to the writ petition) is subject to a revision or an appeal under section 7 of the Punjab Industries (Control on Establishment and Enlargement) Ordinance, 1963. The learned counsel was confronted accordingly. He has tried to argue that the order does not fall under section 3 of [sic] section 4 of the said Ordinance. 3. Upon our query, the learned counsel has frankly conceded that the said impugned order has the effect of stopping or obstructing of the Industrial Project proposed to be installed by the appellant. This being so, the matter squarely falls under section 3 of the said Ordinance which is subject to a revision under the said section 7. Needless to state that section 3 of the Law Reforms Ordinance, 1972, lays down that the instant ICA would not be competent where the law under which the original order has been passed provides that, inter alia, a revision against the same. The ICA is not competent and is accordingly disposed of.” The appellant aggrieved by the above orders approached this Court in Civil Appeal No. 310-L/2011 which was disposed of vide order dated 30th January 2012, reproduced hereunder: “According to the learned counsel for the appellant the notification dated 6.12.2006, on the subject, has also been challenged by the appellant in another writ petition which is still pending before the High Court. 2. In this view of the matter, we are of the opinion that the adjudication of the question involved in this matter is only of academic nature and the adjudication of the substantive notification dated 6.12.2006, is pending in the High Court, this appeal is dismissed. 3. The decision in the writ petition shall not be prejudiced by any finding of the instant appeal.” 4. Mr. Mudassar Khalid Abbasi, the learned Assistant Advocate General of the Government of Punjab (hereinafter “AAG” and “Government” respectively), stated that none of the appellants had availed of the alternate remedy of filing a revision or C.As. 1242 to 1245/2013 5 an appeal under section 7 of the Act therefore the writ petition was not maintainable before the High Court in terms of clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan (“the Constitution”). He also relied upon the above mentioned judgment of the High Court dated 16th April 2008 passed in Writ Petition No. 8473 of 2007 and the order of the Division Bench dated 26th May 2008 passed in ICA No. 130/2008, which had categorically held that the Act provided a venue for the redressal of grievances by filing an appeal or a revision under section 7 and that this Court had not set-aside the said finding, consequently, the writ petitions from which these appeals arise are not maintainable. He next contended that section 3 of the Act did not permit the establishment of an industrial undertaking without the prior permission in writing of the Government and such permission had not been granted to any of the appellants. He stated that it was within the executive domain of the Government to ensure organized and planned growth of industry and the impugned Notification was issued pursuant to the recommendations of experts and decisions made by committees constituted on the subject which could not be assailed in Court. He further stated that the hitherto before approach of granting permission or declining permission on a case to case basis had created misgiving and had also been castigated by the Lahore High Court in the judgment in the case of Madina Sugar Mills v Secretary, Ministry of Industries (PLD 2001 Lahore 506) and the impugned Notification was in line with the said judgment. By referring to the judgment in the case of Arshad Mehmood v Government of Punjab (PLD 2005 Supreme Court 193) he said that Article 18 of the Constitution, which attends to the freedom of trade and business, does not curtail the power of the Government to restrict any particular industry which was against the national or public interest. He referred to a number of documents to show that sugarcane crop consumed considerably more water than cotton or wheat and that the installed capacity of the existing sugar mills was under utilized, therefore, if additional sugar mills were set up or the existing ones expanded it would encourage farmers to grow sugarcane in their vicinity which would be bought by the sugar mills and the growing of cotton or other C.As. 1242 to 1245/2013 6 crops would be discouraged. By referring to the documents on record, he stated that the cotton industry adds considerable value to the harvested cotton and a sizeable portion of the textiles manufactured from it are exported, earning considerable foreign exchange for the country, but the same benefits do not accrue by growing sugarcane and manufacturing sugar. Documents were also referred to show that there was, and is, a considerable shortage of cotton in the country which is adversely impacting the textile industry which has on the one hand reduced foreign exchange earnings and on the other resulted in valuable foreign exchange being spent on the import of raw cotton for consumption by the textile industry. Reference was also made to reports to show that sugarcane as compared to other crops attracts more bacteria and insects which have an adverse impact on other crops. Under such circumstances the Government had decided to stop the erection of new sugar mills as well as the expansion of existing ones and this decision of the Government, incorporated in the impugned Notification, was in the national interest, which was also one of the stated factors to be taken into account when considering an application under section 3 of the Act. Therefore, since every application for the setting up of a new sugar mill or the expansion of an existing one, would be contrary to the national interest, good governance and transparency mandated the issuance of the impugned Notification which had removed all discretion and prevented either favouritism or victimization. Responding to the criticism of the impugned Notification on the ground that neither section 3 nor section 11 contemplated issuance of such a Notification, the learned AAG stated that even if for the sake of argument, but without conceding, this was accepted the appellants still could not set up sugar mills without the prior written permission of the Government and each and every one of the applications could be rejected on the abovementioned grounds. He next contended that the decision to permit new sugar mills or expand existing sugar mills was a policy matter and the courts have always declined to interfere with policy matters particularly when no mala fide or ulterior motive was C.As. 1242 to 1245/2013 7 alleged, let alone demonstrated. In this regard reliance was placed on the cases of Nazar Muhammad Choohan v Faiza Asghar (PLD 2011 Lahore 120) and Government of Pakistan v Zamir Ahmad (PLD 1975 Supreme Court 667). The later judgment was also relied upon to contend that Article 18 of the Constitution permits the imposition of a complete ban on any profession, trade or business. In interpreting a similar provision in the Indian Constitution the Supreme Court of India was also of the same view in the case of Narendra Kumar v Union of India (AIR 1960 Supreme Court 430). The learned AAG responded to Mr. Noor Muhammad Khan Chandia’s contention with regard to the Notification dated 15th July 2005 and stated that it had held the field for a period of only one year and five months and both prior to the issuance of the said Notification and after its withdrawal the prior written permission of the Government was required. As regards the amount spent by Mr. Chandia’s client he stated that only some land was acquired, the value of which had gone up; and the payment of two hundred thousand rupees, which was the only other amount spent by the said appellant, cannot be categorized as a significant investment to create any vested right in the circumstances of the case. The learned AAG also referred to the comments filed in the writ petition from which Civil Appeal No. 1245/2013 arises, which had set out the reasons for issuing the impugned Notification, as under: “The rationale behind this restriction are given below:  At present, 46 sugar mills exist in the province and there is a deficit of about 35% between requirement and production of sugarcane crop. All the existing sugar mills are working below the installed capacity. The Punjab Province is already over crowded with regard to sugar mills, therefore, sanction for establishment of new sugar mills would not be feasible and lead to over investment.  Cotton is the backbone of our economy. It ensures economic security as its value added products contribute 60% to foreign exchange earnings.  Sugarcane crop poses threat to cotton growing areas as it has very strong substitution effect for cotton. Proliferation of Sugar Mills in the Province would adversely affect production of cotton. Government of the Punjab constituted and notified a Location Policy committee headed by the Chief Secretary, C.As. 1242 to 1245/2013 8 Punjab to deliberate upon the policy of Government regarding establishment of new sugar mills to maintain a balance between production of sugar and protection of cotton growing areas of the Proving in the public interest. On recommendation of committee, ban was imposed on establishment of new sugar mills and enhancement of capacity of existing sugar mills throughout the province vide Industries Department’s Notification dated 6.12.2006, which is reproduced as under: “No new sugar mill shall be set up and no enlargement in capacity of the existing Sugar Mills is allowed in the Province.” Prime Minister’s Secretariat (Public) Islamabad, vide U.O No. 3 (2)/E-I-II/08 dated February 9, 2008, also advised the provincial governments to consider imposing complete ban on new installation and expansion of sugar mills for at least 5 years owing to following cogent reasons (Annex-F): i) Sugarcane is water intensive crop requiring 18-20 irrigations for proper growth. Ground water sources are already depleted; increase in sugarcane area will only worsen the situation. ii) Sugarcane is already substituting cotton and wheat in many areas. (iii) Sugarcane crop nourishes pests and bacteria, detrimental to cotton crop. In response, Industries Department vide letter dated 24.3.2008, endorsed the concerns of Prime Minister’s Secretariat and informed that government of the Punjab has already banned establishment of new sugar mills throughout the province. It is added here that in view of growing number of prospective entrepreneurs in the sugar sector, a summary was moved to the Chief Minister (Annex-G), who was pleased to constitute a High Powered Committee headed by Senior Advisor to the Chief Minister to examine the issue regarding lifting of ban imposed on establishment of new sugar mills and enlargement in the capacity of existing sugar mills. The committee met on 08.04.2011 (Annex-H). After thorough deliberations, the committee recommended continuing the ban on establishment of new sugar mills and enlargement in the capacity of existing sugar mills throughout the Punjab.” 5. Mr. Aitzaz Ahsan, the learned senior counsel was permitted to make submissions on behalf of the Pakistan Cotton Ginners Association, supported the submissions of the learned AAG and supplemented his contentions by stating that districts of Southern Punjab were traditionally cotton growing areas and in recognition of this fact notifications, including Notifications dated 4th September 2003, 9th October C.As. 1242 to 1245/2013 9 2003, 1st April 2004, 12th October 2004, and finally the impugned Notification, were issued stopping the setting up of new sugar mills and expanding the installed capacity of the existing ones to ensure that cotton crop is not substituted with sugarcane. Attending to the Notification of 15th July 2005, on which certain appellants placed reliance, he stated that it was an aberration and was issued contrary to the advice of the experts and could be categorized as mala fide as it was designed to benefit certain parties and on such an aberration, which was against the national interest, a case for the sugar industry could not be raised. According to him prior to the issuance of the impugned Notification the matter was attended to in an arbitrary manner by allowing the applications of some while disallowing those of others and at times for ulterior reasons. He further contended that the expansion of the areas growing sugarcane has been economically, agriculturally and ecologically, disastrous. The cotton industry is the backbone of industrialized Pakistan, making value addition to the raw material (cotton) and earning considerable foreign exchange for the country, which heavily relies on such earnings. By referring to a number of documents he stated that it is established there is a huge shortfall of raw cotton in the country which is adversely impacting the production of yarn and textiles which has also reduced the foreign exchange earning potential of the country. As regards the agricultural benefit of growing cotton, as compared to sugarcane, the learned counsel stated that land on which sugarcane has been planted cannot be utilized for a second crop since the stubble remain rooted to the soil whereas the land on which cotton is grown can be utilized. He referred to the reports of experts who had determined that the food security of the country is undermined when sugarcane is grown. On the ecological front he contended that sugarcane used excessive water, as compared to other crops, and since Pakistan is a water-stressed country this should be discouraged. He also referred to the judgment in the case of East and West Steamship Co. v Pakistan (PLD 1958 Supreme Court 41) to state that the power to regulate any industry, trade or C.As. 1242 to 1245/2013 10 business includes the power to prohibit it if it is aimed at preserving the public interest. Many of the documents and reports referred to by the learned counsel were somewhat dated, therefore, we queried whether the economic, agricultural and ecological factors which had prevailed with the Government at the time of issuance of the impugned Notification were still applicable. In response the learned counsel stated that the situation had exacerbated further and referred to an article / report published in daily Dawn on 3rd June 2016 which was based on the ‘Pakistan Economic Survey 2015-2016’, published by the Government of Pakistan, wherein it was stated that cotton constituted 21 per cent of the economy, however, it had recorded a growth of only 0.19 per cent in the said financial year on account of insufficient cotton crop, production of which had dropped by 6.25 per cent and the country managed to produce only 10.07 million bales of cotton whereas the previous years’ production was 13.96 million bales. 6. Mr. Sikandar Bashir Mohmand, was permitted to make submissions on behalf of JDW Sugar Mills Limited, supported the contentions of the learned AAG and those of Mr. Aitzaz Ahsan. He stated that the Act provides for a regulatory framework for the sustainable growth of industry in an organized and planned manner and the impugned Notification was in accordance therewith, which even otherwise was in the exclusive domain of the executive authority of the Government. He further stated that even under the proviso to section 3 of the Act an application for setting up of a new sugar mill or expanding an existing one can be rejected if it is contrary to the national interest. The documents on record show that there was sufficient material to support the decision of the Government taken in the national interest, which had culminated in the issuance of the impugned Notification. He also relied on the judgment in the case of East and West Steamship Co. v Pakistan (above) which had interpreted Article 12 of the earlier Constitution, which was similar to Article 18 of the 1973 Constitution, C.As. 1242 to 1245/2013 11 and in doing so had concluded that the words “lawful trade or business” envisaged the imposition of a ban on any business or trade if it was in the public or national interest to do so. 7. Mr. Salman Akram Raja, the learned ASC, had submitted an application (CMA No. 2977/2016) on behalf of Ittefaq Sugar Mills Limited to be impleaded as a party, as according to him a decision in this matter may adversely affect the said company as it had sought the relocation of its sugar mills installed in District Pakpattan to District Bahawalpur at a place near the border with District Rahim Yar Khan. Without granting the said application we permitted him to make his submissions on behalf of the said Company. JDW Sugar Mills Limited and Hamza Sugar Mills Limited, presumably the competitors of Ittefaq Sugar Mills Limited, had filed Writ Petition No. 12879 of 2015 seeking to restrain the said shifting whereas Ittefaq Sugar Mills Limited had filed Writ Petition No. 18827 of 2015 wherein the impugned Notification has been assailed though in the alternative it has been stated that the impugned Notification does not restrict the relocation of existing sugar mills. Both these petitions we are told are still pending before the Lahore High Court. The petitioners in Writ Petition No. 12879/2015 are opposing the proposed shifting as it would increase the installed capacity of sugar mills in the Southern Punjab Districts which they state is not sustainable as the available installed capacity is already under utilized. However, Mr. Salman Akram Raja controverted their objection. He also referred to a document to show that the cultivation of sugarcane crop in the area has considerably increased if the figures for the years 2005-2006 are compared to those of 2014-2015. It appears that there is a tussle between two different sugar mills’ owners regarding the relocation of an existing sugar mill, whereas the matter considered by us is the determination of the legality of the impugned Notification which has imposed a ban on the setting up of new sugar mills and also expanding the installed capacity of existing ones. Therefore, it would not be appropriate for us to express any opinion on C.As. 1242 to 1245/2013 12 this aspect of the matter which has as yet not been decided by the Lahore High Court where the said two writ petitions are pending adjudication. 8. The questions for determination before us are: (1) whether the impugned Notification could have been issued under the Act, (2) whether despite the issuance of the impugned Notification the Government was required to give reasons for declining an application received under section 3 of the Act, (3) whether the issuance of the impugned Notification was within the domain of the executive authority of the Government and therefore immune from challenge, (4) whether there were valid reasons for issuing the impugned Notification and (5) whether such reasons were sufficient to constitute public or national interest. 9. Before proceeding to answer the abovementioned questions it would be appropriate to reproduce the referred to provisions of the Act, the impugned Notification, Notification dated 17th September 2002 and Notification dated 15th July 2005. The Act: “Preamble. Whereas it is expedient to provide for the organized and planned growth of industries in the Punjab, in the manner hereinafter appearing;” “3. Restrictions on establishment of industrial undertakings. No person shall establish or cause to be established any industrial undertaking or enlarge or cause to be enlarged any existing industrial undertaking except with the previous permission in writing of Government. Provided that the application of any person for the grant of such permission shall not be rejected: (a) without giving such person an opportunity of showing cause against it; or (b) unless the Government is satisfied, on the basis of information available to it and after making such inquiry as it may deem fit, that the grant of permission to such person will be prejudicial to the national interest, or injurious to the health of or a source of C.As. 1242 to 1245/2013 13 nuisance for, the residents of the local area in which the industrial undertaking is proposed to be set up or, as the case may be, the industrial undertaking which is proposed to be enlarged is situated.” “7. Revision and appeal. (1) Any person feeling aggrieved by an order passed by Government or by any officer or authority under section 3 or section 4, may, within thirty days of the date of the order, apply to Government for a revision of the order. (2) Any person feeling aggrieved by an order passed by the Director under section 4 may, within thirty days of the date of the order, prefer an appeal to Government. (3) If in any case it shall appear to Government that any order passed by Government or the Director, as the case may be, be set aside or modified, Government may pass such order thereon as may be deemed fit: Provided that no such order shall be passed unless, in the case of an appeal, the appellant and in any other case the party to be affected adversely, has been given reasonable notice to appear and be heard. (4) Subject to any order passed by Government under the last preceding sub-section the order passed by Government or the Director under section 3 or section 4, as the case may be, shall be final.” “11. Exemption. Government may, by notification in the Official Gazette, exempt any industrial undertaking or class of industrial undertakings from all or any of the provisions of this Act or the rules.” Impugned Notification dated 6th December 2006: “Government of Punjab Industries Department Dated Lahore, the 6th December, 2006 NOTIFICATION No. AEA-III-3-5/2003 (Vol-III):- In exercise of the powers conferred upon him under Section 11 read with Section 3 of the Punjab Industries (Control on Establishment & Enlargement) Act, 1963, the Governor of the Punjab is pleased to order that in supersession of Notification No. AEA-III-3-5/2003, dated 15th July, 2005, notified in the Extraordinary issue of the Punjab Gazette published on July 20, 2005; the following amendment shall be made in the Government of the Punjab, Industries Department Notification No. AEA-III 3-9/91 dated 17.09.2002, with immediate effect: C.As. 1242 to 1245/2013 14 AMENDMENT For Clause 3, the following shall be substituted: “No new sugar mill shall be set up and no enlargement in capacity of the existing Sugar Mills is allowed in the Province.” Secretary Industries Department” Notification dated 17th September 2002 (published in The Punjab Gazette on 30th September 2002): “Lahore Monday September 30, 2002 Government of Punjab Industries, Mines & Minerals Department NOTIFICATION No.AEA-III.3-9/91:- In exercise of the powers conferred upon him under Section 11 of the Punjab Industries (Control on Establishment & Enlargement) Act, 1963 and in supersession of the Punjab Government Notification No.AEA-III-4-1/85, dated 26 October, 1986, amended up to 12th February, 2000, the Governor of the Punjab is pleased to exempt all industries and areas from the provisions of Section 3 of the said Act except as notified hereunder:- 1. No Industrial unit mentioned in Schedule ‘A’ of this notification or industrial unit exceeding a total cost of Rs. 100.00 million (Rupees Hundred million) shall be set up within 10 miles (16 KMs) of the International Border. 2. No Industrial unit shall be set up in areas affected by flood flowing transversely in the strip of one mile of either side across the Grand Trunk Road from Shahdara Town to Muridke Town, without prior permission of the Provincial Government. 3. No new Sugar Mill shall be set up and no existing Sugar Mill be enlarged in the districts of Multan, Sahiwal, Vehari, Khanewal, Pakpattan, Lodhran, Bahawalpur, Rahimyar Khan, Bahawalnagar, D. G. Khan, Rajanpur, Layyah, Muzzaffargarh and Okara. 4. Each District Government may declare “negative area” for industry. Such “negative area” be determined by a District Committee after consultation with all stakeholders in light of general policy guidelines to be issued by the Industries Department and exemptions allowed under Schedule ‘B’ of this Notification. 5. No Industrial Unit mentioned in Schedule ‘C’ of this Notification shall be set up any where in the Punjab without prior approval of the Government. C.As. 1242 to 1245/2013 15 6. The Government reserves the right to refuse establishment / enhancement of any Industrial undertaking which is in contravention of the public interest, ecology or any other law / rules for the time being in force. 7. The Government may relax any of the provisions of this notification in case of a particular unit or industry or class of units of industries. Secretary to Government of Punjab Industries, Mines & Minerals Department” Notification dated 15th July 2005: “Government of Punjab Industries Department Dated Lahore, the 15th July 2005. NOTIFICATION No. AEA-III-3-5/2003. In exercise of the powers conferred upon him under Section 11 read with Section 3 of the Punjab Industries (Control on Establishment & Enlargement) Act, 1963, the Governor of the Punjab is pleased to order that in supersession of Notification No. AEA-III-3-5/2003, dated 12-10-2004 notified in the Punjab Weekly Gazette October 20, 2004; the following amendment shall be made in the Government of the Punjab, Industries Department Notification No. AEA –III-3-9/91 dated 17-09-2002, with immediate effect: AMENDMENT For Clause 3, the following shall be substituted: i) The establishment of new sugar mills upto the capacity of 16,000 TCD is allowed in the province. ii) The sugar mills are not allowed to enlarge existing capacity over 16,000 TCD. Secretary Industries Department” 10. The purpose of enacting the Act is proclaimed in its preamble which is, “to provide for the organized and planned growth of industries in the Punjab”. The most significant provision of the Act is its section 3 which states that the prior permission in writing of the Government is to be obtained before establishing or enlarging any industrial undertaking. The proviso to the section 3 however states that an application seeking permission shall not be rejected without giving an opportunity of showing cause against it (clause (a) of the proviso) or the Government is satisfied, “on the basis of information available to it … that the grant of permission … will be prejudicial to C.As. 1242 to 1245/2013 16 the national interest, or injurious to health or a source of nuisance for, the residents of the local area” in which it is to be set up or enlarged (clause (b) of the proviso). However, the Government may, in exercise of powers under section 11, “exempt any industrial undertaking or class of industrial undertakings from all or any provision of this Act or the rules”. We were informed that no rules have been enacted so far. 11. The impugned Notification has been issued under section 3 read with section 11 of the Act and has effectively placed a complete ban on the setting up of new sugar mills or expanding the existing ones. There is some merit in the contention of the appellants that section 11 is an enabling provision rather than a disabling one, therefore, a ban on a class of industrial undertakings could not have been imposed thereunder. However, such an interpretation would not in itself enable the appellants to set up or expand any industrial undertaking because section 3 clearly requires the previous permission in writing of the Government. There is also not a serious challenge to the proposition that each and every application could be rejected by the Government on the ground that it was “prejudicial to the national interest”. The Government has instead issued the impugned Notification restricting the establishment of new sugar mills as well as expanding existing ones. Let us consider the ambit of the proviso first. The proviso enables the Government to reject applications if it is satisfied on the basis of information and any inquiry that it may deem fit to conduct that it is prejudicial to the national interest or is injurious to health or is a source of nuisance. Accordingly we proceed to consider the information available with the Government and the inquiries made by it before it had issued the impugned Notification. 12. The Ministry of Food, Agriculture and Livestock of the Government of Pakistan reviewed the position that had emerged after the issuance of the Notification dated 15th July 2005, by the Government of Punjab, and recommended (on 8th September 2005) that the said Notification be withdrawn and, “a country-wide complete ban on installation and expansion of sugar mills may be imposed immediately by all the provinces”. It also called upon the Provincial Governments to C.As. 1242 to 1245/2013 17 constitute provincial committees for the preparation of comprehensive guidelines on the subject. The recommendations were made on the basis of the following documented reasons: “4. The new Policy has been examined by the Ministry of Food, Agriculture, and Livestock and its views on the mater are as follows: i. Sugarcane is a tropical crop as it requires high rainfall and moderate temperature for optimum growth. Pakistan does not have the tropical climate and irrigation resources needed to attain comparative advantage in the cultivation of sugarcane. Therefore, it is not in our economic interest to promote this crop, particularly in the areas in which it displaces cotton and wheat. ii. Sugarcane is typically sown during the months of February-March and harvested during November-March. Its life cycle has a span of around one year. It needs almost 18-20 irrigations for proper tillering and growth. Cotton and wheat rotation over the same period requires around 10-12 irrigations. Sugarcane is thus a highly water intensive crop not suited to our cropping system and rainfall patterns. In a future scenario where water resources will become scarcer. It is neither advisable nor prudent to replace cotton/Wheat rotation with Sugar Cane. iii. As a consequence of its water intensive nature, sugarcane in the cotton zone is grown in the areas where ground water is sweet as canal water alone cannot meet the total requirement. Water shortage and low rainfall in previous years have led to excessive ground water pumping. Experts are already raising serious concerns regarding depletion of our ground water resources. Any increase in sugarcane area in the cotton zone will only worsen the situation. Availability of sweet groundwater is a major source of irrigation in southern Punjab, an area which produces the bulk of our cotton and wheat crops. These areas are serviced by non-perennial irrigation canals that run only for six months, leaving the farmer totally dependent on the aquifer for the remaining months of the year. Any adverse change in the aquifer in the core cotton growing area will, therefore, jeopardize our economic future. iv. Sugarcane further loses its economic potential when it is grown under the dry and hot conditions of “cotton zone”. In such an environment, it substitutes out our most important crops i.e. cotton and wheat and its irrigation requirements are further increased due to the low rainfall and hot weather conditions. Frequent irrigations under hot and dry conditions significantly raise humidity levels and create ideal conditions for rapid multiplication of pests – conditions not favorable for the cotton crop. These were the factors that had led to the imposition of the ban on installation of sugar mills in the “cotton zone”. These factors have now become even more important in view of our “Textile Vision”, changing world C.As. 1242 to 1245/2013 18 scenario for textile competitiveness, and rapid expansion in our textile sector in the recent past. v. In order to achieve the targets of textile vision 2010, we need all the available land under cotton cultivation. Billions of dollars of investment has taken place in the textile sector during the last five years on the firm commitment of the Government that industry-friendly policies assuring uninterrupted and adequate supply of all raw materials will be formulated. Consequently, demand for raw cotton has substantially increased in the recent past. The Federal and Provincial Governments should implement policies and programs which encourage growers to bring more area under cotton instead of curtailing the area and switching to other crops. vi. The Punjab Government had itself initiated a program of “Revival of Cotton in old Cotton area” in 2002 to increase cotton acreage in Punjab and as a part of the policy had actually revised its definition of “cotton zone” by including new districts in the negative list and banning the setting up of sugar mills in these districts. An abrupt reversal of policy will shake the confidence of the textile industrialists which we can ill afford at this crucial stage. APTMA has already expressed serious concern based on rumours about the change in the Policy (annex C). It will take up this issue with the Government at all levels more vigorously once they receive official Notification. We will not be able to defend this shift in Policy given our previous policy statements.” 13. The Cane Commissioner of Punjab had also opposed lifting the ban on the establishment of new sugar mills and expanding the capacity of existing ones. In coming to this decision he gave the following reasons which are contained in his letter dated 4th April 2009: “1. The Punjab Sugar Industry include 46 sugar mills out of which 45 are functional. The crushing capacity of the 45 functional sugar mills is 3,21,900 metric ton per day. Due to non availability of sufficient sugarcane these mills have never utilized their crushing capacity 100% even in the year 2007-08 when there was a bumper crop of sugarcane. In that year the sugarcane crushed was 3,30,63,564 metric ton during 150 crushing days as against requirement of 4,82,85,000 metric ton of sugarcane for 100% utilization of crushing capacity of sugar mills. In the sugarcane glut season the mills could run only @ 65 to 70% of their crushing capacity. 2. The maximum sugarcane growing area falls in Bahawalpur and Faisalabad Divisions. The number of sugar mills in these Divisions are 7 & 16 having a crushing capacity of 87,000 & 1,04,000 metric ton per day, respectively. These sugar mills despite their having been located in the C.As. 1242 to 1245/2013 19 favourable sugarcane growing area, have never managed utilize their mills crushing capacity fully. 3. Sugarcane is a high water delta crop. It can not possibly be horizontally propagated and extended.” 14. The Government had sought the comments and views of the Agriculture Department on the “Establishment of New Sugar Mills” which were conveyed by the Secretary Agriculture under cover of letter dated 20th February 2008, from which the following extracts have been reproduced: “Sugarcane and cotton are two important cash crops of the Punjab besides rice. However, in the main cotton belt sugarcane has emerged as a competing crop with its inroad in traditional cotton belt i.e. Rahim Yar Khan due to establishment of new crushing unit in the areas. This trend has enormous economic and ecological consequences. Sugarcane is a one year crop and it requires high delta of water compared to cotton as Punjab falls under arid climate whereas sugarcane is a tropical crop. Moreover, in case of cotton, wheat can be grown after cotton picking which substantially contribute to the food security of the country and generate surplus for the deficit areas. The wheat grain in cotton belt is of high gluten and free from seed born disease. Cotton ensures economic security as its value added product contributes 60% to the foreign exchange. There is a widening gap in demand and supply due to which country has to import cotton to meet the domestic requirements evident from data below. In future, import of cotton will not be cost effective due to expansion in textile sector of India and China. The country requires about 18 millions bales of cotton by the year 2015 and 80% of it has to be produced in the Punjab Province. This target can be achieved through increase in production per unit area and expansion in area. Therefore, we need to maintain the current level of areas under cotton and also ensure 1 % expansion in areas every year. The expansion of sugarcane in the Province is evident from the table below. The mills capacity is already much higher compared to the cane supply.” 15. A Committee was constituted by the Chief Minister of Punjab which included the Chief Secretary, Secretary Industries, Secretary Agriculture, and Secretary Food as well as the representatives of the Lahore Chamber of Commerce and Industries and representatives of the Punjab Sugar Mills Association. The said Committee, in its meeting held on 8th April 2011, recommended the “ban on establishment of new sugar C.As. 1242 to 1245/2013 20 mills and enlargement in capacity of existing sugar mills of any category throughout the Province.” In supporting the ban the Secretary industries stated: “…the imposition of ban on sugar mills by the Government of the Punjab was in line with the position of Federal government namely that promotion of sugarcane production was not in the national interest in view of its substitution effect on cotton and wheat crops and its harmful role, being a water intensive crop, in the depletion of ground water resources. He pointed out that crushing capacity of sugar mills in the province was underutilized to the extent of a 36% deficit between crushing capacity of sugar mills and availability of sugarcane in Punjab.” The view of the Chief Secretary of the Province was recorded in the minutes of the meeting as under: “…applications to setup new / mini sugar mills were mostly for setting up units in cotton growing belt of Punjab. The attraction of this area for the investors was mainly on account of high sugarcane recovery and if this trend is encouraged, the demand for additional sugarcane would come at the expense of the cotton crop. However, as sugar requirements of the province could easily be met from existing capacity of sugar mills, addition of new / mini sugar mills is not needed. He was of the view that the ban on the establishment of new sugar mills may be continued.” The Secretary Agriculture endorsed the above view adding, “that lifting of ban on establishment of sugar mills would affect production of cotton which was presently 13 million bales and the country’s demand was 15-16 million bales.” 16. It is therefore quite clear that the decision of the Government, disallowing the setting up of new sugar mills and expanding the capacity of existing ones, was taken after considerable deliberations and was in conformity with the advice of experts of the relevant departments, including Agriculture, Food and Industries. The decision of the Government is also in accordance with the views of the Government of Pakistan. The factors taken into consideration in coming to such a decision, as gleaned from the referred to documents, included the following ecological / environmental, agricultural, industrial and financial ones: C.As. 1242 to 1245/2013 21 ● Punjab has an arid climate whereas sugarcane is best grown in tropical zones; ● Sugarcane consumes far more water than other crops; ● The water required for growing sugarcane in non-perennial irrigation canal areas is made up by tapping into groundwater / aquifers inducing water scarcity by depleting aquifers; ● Sugarcane stubble remains rooted in the soil after it has been cut therefore the second (wheat) crop cannot be grown on such land whereas it can be grown on the land from which cotton is harvested; ● Sugarcane adversely affects food security; ● Sugarcane substitutes cotton and wheat; ● Existing sugar mills have underutilized capacity; ● Textile industry is being starved of locally available cotton; ● Cotton bales are imported by using scarce foreign exchange; ● Textiles are a major foreign exchange earner; and ● International price of sugar is cheaper than the local price therefore sugar does not have export potential. 17. In order to ascertain whether some or all of the aforesaid factors, which had led to the ban being imposed, still prevailed, we examined the current data on the subject. The Cane Commissioner of the Punjab as recently as 24th July 2015 pointed out that even though sugar mills were operating well below installed capacity the production of sugar was considerably more than its consumption, stating that: “4. Pakistan is producing above 5 MMT of sugar per annum and has excess installed crushing capacity (3,47,900 MT / Day - Punjab) than domestic consumption, whereas the annual domestic consumption is 4.4 MMT on the basis of 200 million population and average per capita consumption of 22 kgs per annum.” The sugar glut could also not be reduced by exporting it because: “5. International price of sugar are $360-375 M. Ton and domestic price are $500 per M. Ton during 2015.” The “Pakistan Economic Survey 2015-2016”, published by the Finance Division of the Government of Pakistan, also does not depict an encouraging situation. C.As. 1242 to 1245/2013 22 The financial year (FY) 2015-2016 discloses excessive sugarcane production and a deficit cotton crop which is adversely affecting the cotton ginning and textile industry with negative financial consequences, as can be seen from the following extracts taken from the said report: “During FY 2016, the performance of agriculture sector as a whole remained dismal as it witnessed a negative growth of 0.19 percent against 2.53 percent growth during the same period last year. The growth of crops declined by 6.25 percent, while the other sub component of Agriculture sector like Livestock, Forestry and Fishing posted positive growth of 3.63 percent, 8.84 percent and 3.25 percent, respectively. The growth of sub Sector of crops included important crops, other crops and cotton ginning remained negative as it posted a growth of -7.18 percent, -0.31 percent and -21.26 percent which impacted negatively on crops as a result became the reason of negative growth of Agriculture sector. The last negative growth in Agriculture was witnessed in 2000-01, when agriculture growth declined to 2.18 percent. Important crops having a share of 23.55 percent in agricultural value added has witnessed negative growth of 7.18 percent on account of large decline in cotton production (27.83 percent), rice production (2.74 percent) and maize production (0.35 percent) during 2015-16 against negative growth of 0.52 percent during the same period of last year. While only wheat and sugarcane production witnessed a positive growth of 1.58 percent and 4.22 percent respectively, as compared to last year. Other crops contributed 11.36 percent in value addition of agriculture witnessed a decline of 0.31 percent during 2015-16 against positive growth of 3.09 percent during the same period last year due to decline in the production of pulses, fruits and oilseeds posting negative growth of 12.49 percent, 2.48 percent and 9.56 percent, respectively. With drop in cotton production by around 27.83 percent this year the Cotton ginning having a share of 2.32 percent in value addition of agriculture has suffered badly and posted a negative growth of 21.26 percent compared to 7.24 percent growth during the same period last year.” (at pages 24 and 25) “Cotton being a cash crop and a essential source of raw material to the textile, enables the textile industry to survive and expand its base. The cotton has share of 1.0 percent in GDP and contributes 5.1 percent in agriculture value addition. This year the production of cotton massively declined therefore, to maintain the supply chain of cotton to the textile industry, the import of raw cotton during July-March 2015- 2016 has increased to 345.363 thousand tonnes compared to 97.354 thousand tonnes during same period last year showing a growth of 254.75 percent while in value terms it reached to US$ 588.236 million against US$ 224.647 million witnessing growth of 161.85 percent. During 2015-16, the cotton crop was sown on an area of 2917 thousand hectares, showing a decrease of 1.5 percent over last year’s area of 2961 thousand hectares. Cotton production for the year 2015-16 stood at C.As. 1242 to 1245/2013 23 10.074 million bales against 13,960 million bales last year showing a decline of 27.8 percent.” (at page 26) The excessive availability of sugar is further confirmed by the statement of the Economic Advisor of the Government of the Punjab, which is based upon the statistics provided by the Sugar Advisory Board of the Ministry of Industries and Production, Government of Pakistan, filed by the learned AAG: “As per latest (2015-16) statistics of Sugar Advisory Board, Ministry of Industries & Production, Islamabad the requirement of sugar per person per annum is 20 kg. Thus for the Punjab population of around 100 million, the sugar requirement is approximately 2MM tons per annum and the population based sugar requirement of Pakistan is approximately 4 MM tons per annum. The detail of Sugar Production and Demand is as under: Pakistan Punjab Production of Sugar 5.681 Million Metric Ton 2.900 Million Metric Ton Demand of Sugar 4.0 Million Metric Ton 2.144 Million Metric Ton Surplus Sugar 1.681 Million Metric Ton 0.756 Million Metric Ton” Thus, the situation that had prevailed prior to the ban being imposed appears to have been further aggravated. Therefore, not only has the ban been justified but also its continuance is imperative. 18. Before proceeding to answer the questions formulated in paragraph 8 (above) it would be appropriate to attend to the preliminary legal objection taken by the learned AAG that the appellants had not availed of the alternate remedy of revision / appeal. In our opinion availing of the said remedies would be an exercise in futility in the presence of the impugned Notification as it is not expected that a Government functionary could, or even should, take a decision contrary to the Government’s policy decision incorporated in the impugned Notification of not permitting the setting up of new sugar mills or expanding the existing ones. Moreover, it was rightly noted by Jawwad S. Khawaja J, when he was a judge of the Lahore High Court, in the case of Madina Sugar Mills (above), the havoc caused when discretion was given and how it was abused. The judgment sets out the history of the law and how appallingly matters C.As. 1242 to 1245/2013 24 of national importance were attended to as amply demonstrated by the following extracts therefrom: “3. From time to time the Provincial Government has issued notification in exercise of its powers under section 11 of the Ordinance. The first such notification, which bears relevance to the present case was issued on 2-10-1986 and is hereinafter referred to as the “Original Notification”. By means of the Original Notification, all industries and areas in the province were exempted from the application of section 3 of the Ordinance except those specified in the said Notification itself. As a consequence, border areas, areas prone to flooding and urban areas among other specified locations, were retained within the regulatory ambit of section 3 of the Ordinance while in the remaining areas of the Province, industries could be set up (subject to certain industry-wise restrictions) without obtaining the prior permission of the Government under section 3 of the Ordinance. The area-wise restrictions, which find mention in paragraphs Nos.1 to 4 of the Original Notification, reflect what is officially termed as the "Location Policy" of the Punjab Government.” (at pages 508-509) “5. After the Original Notification the Location Policy underwent numerous changes, primarily it would appear, effecting the sugar industry. On 3-11-1988 as Notification (the “First Amending Notification”) was issued whereby the sugar industry was brought into the Location Policy of the Government through the incorporation of paragraph 2(a) in the Original Notification. Paragraph 2(a) stipulated that no sugar mill would be allowed to be set up in a defined negative area comprising of the divisions of Multan, Bahawalpur and D. G. Khan and the district of Okara.” (at page 509) “7. What happened subsequent to the First Amending Notification is a story of distasteful cronyism which was indulged in by the incumbent Chief Ministers of the time which undermined the well-considered Location Policy of the Government and sacrificed the State and public interest to the business, commercial and political interests of persons who were influential politically or otherwise. It appears that as and when the Government in power wished to favour such influential persons, the Location Policy was modified without much ado and wholly in disregard of the considerations, which had prevailed in the formulation of the Location Policy in the first place. New sugar mills as a result, were allowed to be set up in the negative area comprising of the divisions of Bahawalpur, Multan and D.G. Khan and the District Okara.” (at page 510) “9. … It has become apparent from an examination of the official record that each of the notifications mentioned in the preceding paragraph, was issued to accommodate influential persons desirous of setting up sugar mills in the negative area. These notifications are not based on any valid justification for modifying the Location Policy. No committees were constituted nor was any data, information or opinion gathered C.As. 1242 to 1245/2013 25 to justify deviation from the Location Policy, which had been formulated after the in-depth and extensive deliberations preceding the First Amending Notification as set out in paragraph 6 above. The learned Advocate-General at the very outset conceded that he could not defend what had happened during the past. He did, however, argue that any failing of mis- governance in the past could not be made the basis for allowing it to continue in the future also.” (at page 511) “16. However, having so held I am not oblivious of the abusive manner in which the well-considered Location Policy of the Government was tampered with for considerations which clearly were based on favouritism and were not motivated by the interest of the State. I have little doubt that if any of the notifications mentioned in paragraph 8 had been challenged in Court, at the relevant time, on the ground of arbitrariness and unreasonableness, such challenge would have merited serious consideration. In this context I find that the Final Notification represents a salutary correction of the waywardness with which the Location Policy of the Government was undermined in the past. It is not for this Court to sit in judgment over the policy decision of the Government once the Court concludes that the process through which such policy decision was arrived at was not open to exception.” (at page 513) We could not agree more with the aforesaid observations with regard to the sad state of affairs that prevailed. The cherished objective of transparency in governance was obfuscated. Unfortunately, the incumbent Chief Minister/s have continued on the path of favoritism as it transpires that despite the said judgment a number of sugar mills were given permission to be set up. In this regard, in response to our query, the learned AAG placed on record letter dated 24th June 2016 of the Economic Advisor of the Government of Punjab which shows that during the period that the Notification dated 15th July 2005 held the field a sugar mill of a capacity of 12,000 TCD was set up in District Muzaffargarh and another of a capacity of 16,000 TCD was set up in District Rahim Yar Khan. Alarmingly two sugar mills were also allowed to be set up after the issuance of the impugned Notification which had forbidden the setting up of new sugar mills; one of a capacity of 12,000 TCD in District Rahim Yar Khan and another of a capacity of 15,000 TCD in District Mianwali. These facts came to the fore incidentally and are not the subject matter of these appeals therefore it would not be appropriate to state any thing further in this regard as the same may be subject matter for investigation and litigation. C.As. 1242 to 1245/2013 26 19. The appellants have also questioned the constitutionality of the impugned Notification, even though no challenge was made on this score in the prayer clause of the petition before the High Court. It has been contended that the impugned Notification violates the appellants’ fundamental right contained in Article 18 of the Constitution to conduct the business of setting up sugar mills and manufacturing sugar therefore the said ban must yield to the Constitution. To appreciate the contention it would be appropriate to reproduce the said provision of the Constitution, as under: “18. Freedom of trade, business or profession. Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business: Provided that nothing in this Article shall prevent- (a) the regulation of any trade or profession by a licensing system; or (b) the regulation of trade, commerce or industry in the interest of free competition therein; or (c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons.” The case of Government of Pakistan v Zamir Ahmad Khan (PLD 1975 Supreme Court 667) considered the licensing regime enabling import of cinematograph films and the amendment made therein pursuant to which the respondents were disqualified from importing films. A three member bench of this Court considered the scope of Article 18 of the Constitution. It also considered whether the issuance of a license can be claimed as a right even if it was contrary to the policy objective of the Government and whether a writ can be issued which would defeat the policy that was competently made by the Federal Government. Muhammad C.As. 1242 to 1245/2013 27 Gul J, delivered the courts opinion, and it would be appropriate to reproduce the following extracts therefrom: “It will be appropriate to examine in the first instance, whether the respondent can invoke any provision of the Constitution in the Chapter relating to the Fundamental Rights for the grant of licence for the import of films. Article 18 of the Constitution, which relates to the freedom of trade, business or profession, which corresponds to Article 15 of the, Interim Constitution, and which incidentally held the field at the relevant time, assures the citizens the right to enter upon any "lawful profession or occupation" and "to conduct any lawful trade or business". It is important to point out that the word "lawful" qualifies the right of the citizen in the relevant field. This clearly envisages that the State can by law ban a profession, occupation, trade or business by declaring it to be unlawful which in common parlance means anything forbidden by law. Prostitution, trafficking in women, gambling, trade in narcotics or dangerous drugs are common place instances of unlawful profession or trade. These are inherently dangerous to public health or welfare. Therefore, on the wording of Article 18 of the Constitution, the right to enter upon a profession or occupation or to conduct trade or business can hardly be described to be a constitutional or fundamental right when such right may be denied by law. In this respect our Constitution stands in sharp contrast with the corresponding provision of the Indian Constitution which omits the use of word "lawful" in the relevant provision.” (at page 672) “…law is well settled that in the generality of cases, licence (simpliciter) is a privilege and not a legal right; much less there is a legal duty for its grant. Therefore, exceptional cases apart, mandamus would not issue in such cases. Speaking generally in such cases the emphasis is on policy, and any discretion vesting in the authorities is directed towards attaining the policy objective.” (at page 677) “Indeed, the Government has all along since the inception of the Ordinance, frequently and materially altered import policies. These policies are determined generally with reference to the domestic needs their priorities, availability of foreign exchange and multitudes of other factors of which the Federal Government is the sole arbiter in exercise of its executive authority. The decision taken, falls within the realm of policy making. These policy decisions are binding on the subordinate administrative authorities as a matter of duty. In all such cases, orders made must conform to the policy decisions of the Government. The amendment made on 10-8-1972 in item No. 49 signified a change in policy and the respondent was informed that he was being refused licence because of "the change in policy" and not because of any other reason. On these facts, it is not possible to subscribe to the proposition that a writ of mandamus would lie against the Licensing Authority which would have the effect of defeating the policy, C.As. 1242 to 1245/2013 28 competently made by the Federal Government.” (at pages 677- 678) The above judgment was referred to and approved (at page 223) in the seven member bench judgment of this Court in case of Arshad Mehmood v Government of Punjab (PLD 2005 Supreme Court 193). However, the point for determination in Arshad Mehmood’s case was quite different, which was to consider the constitutionality of section 69-A introduced in the West Pakistan Motor Vehicles Ordinance, 1963 in pursuance whereof the appellants had been prevented from plying their transport vehicles despite holding valid route permits. This Court held that since the exclusion of the appellants by franchise holders pursuant to section 69-A was a ‘classification’ not permissible under Article 25 (the equality provision of the Constitution) section 69-A of the said Ordinance was “violative of Article 25 of the Constitution”. 20. In the cases heard by us the appellants were not already operating sugar mills but were proposing to set up new ones. The owners of existing sugar mills were also prevented from expanding their sugar mills. The decision to impose the ban was not to benefit or punish anyone but to ensure the organized and planned growth of the industry, which may include the factors noted in paragraph 16 above, even though by imposing a ban the existing sugar mills may have obtained an advantage of reduced competition. The decision to impose the ban was taken after long deliberations and on the advice of experts and we have not been shown any mala fide or ulterior motive of the Government in taking this decision. On the contrary, it may well be stated that if the Government had not finally acted it would have further devastated the environment and food security as well as undermining the economy. When the Government stopped the expansion of the sugar business it did not offend Article 18 of the Constitution since the rights guaranteed thereunder are “subject to such qualifications” that have been “prescribed by law”. The Act starts with the position of not permitting the setting up of any industry except by the prior written permission of the Government and then proceeds to state that the applications seeking such C.As. 1242 to 1245/2013 29 permission shall not be rejected except for the reasons mentioned in the proviso to section 3. Regretfully the rules which were envisaged in the Act and were to be made by the Government have not materialized despite the Act being in the field for over 53 years. Consequently, anyone can submit an application wanting to set up any industry and each such application is to be dealt with on a case to case basis. This, to say the least, is a most unsatisfactory state of affairs. In this terrain unregulated by rules the Government may reject the applications received by it either under clause (a) or clause (b) of the Act. Under clause (a) the Government has to provide an opportunity to show cause against it. However, under clause (b) the Government may reject an application if it is satisfied, on the basis of information available to it and after making such inquiry as it may deem fit. As noted above the Government had inquired into the matter and there was considerable information available with for it to conclude that permitting the establishment of new sugar mills or permitting the expansion of existing ones was prejudicial to the national interest. The Government therefore took the decision to prohibit both new sugar mills and the expansion of existing ones and issued the impugned Notification. The decision of the Government was/is in the public and national interest. Such decision was also not motivated by malice, mala fide nor taken for any ulterior reason. Therefore, it is unexceptionable. In respect of such a decision a writ under Article 199 of the Constitution does not lie. Whilst a notification prohibiting a particular class of industry as noted above may not be issued under section 11 of the Act, there is no reason why it could not be issued under section 3 of the Act, even though section 3 does not specifically mandate the issuance of such a notification. 21. Having answered the first question (formulated in paragraph 8 above) in the affirmative leads us to the second question. Since the Government has issued the impugned Notification, which is based on valid reasons we do not think there would be any point to give reasons for declining an application seeking the establishment of a new sugar mill or expanding an existing one. The impugned Notification is C.As. 1242 to 1245/2013 30 undoubtedly within the executive authority of the Government, which answers the first part of the third question, however, it would not be immune from a challenge if it could be demonstrated that it was issued for mala fide or for ulterior purposes or was against the public or national interest, which answers the second part of the third question. Whilst it may have been difficult to determine the line which separates the legitimate from the illegitimate assumption of such power there was no difficulty in determining this in the present case. As has already been determined that there were valid reasons for issuing the impugned Notification the fourth question stands answered. The fact that there were a number of reasons justifying the issuance of the impugned Notification and each reason in itself sufficient to be categorized as constituting the public or national interest the fifth question too is answered. In conclusion we may state that the legal principles enunciated in the case of Madina Sugar Mills (above) were correct. 22. That for the aforesaid reasons these appeals are dismissed, however, because such a matter had not been earlier decided by this Court and there was some uncertainty about it there shall be no order as to costs. Judge Judge Announced in open Court At Islamabad On 25th July, 2016 By Justice Ejaz Afzal Khan, J. APPROVED FOR REPORTING (Zulfiqar)

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“The right to dissent is the only thing that makes life tolerable for a judge of an appellate court.” - Justice William O. Douglas MAQBOOL BAQAR, J,- Brought under challenge through various constitution petitions before the Sindh High Court, was the transfer/devolution of three different entities, namely, Jinnah Postgraduate Medical Centre (JPMC), National Institute of Child Health (NICH), and National Institute of Cardio Vascular Diseases (NICVD), by and from the Federal Government to the Province of Sindh. It was submitted that the transfer/devolution, was ultra vires the Constitution of Islamic Republic of Pakistan, 1973 (‘Constitution’) as the three entities were federal institutes of the nature as described by Entry No. 16 of Part-I of the Federal Legislative List (FLL) of the Constitution. Entry No. 16 reads as follows: “16. Federal agencies and institutes for the following purposes, that is to say, for research, for professional or technical training, or for the promotion of special studies.” 2. The genesis of JPMC lies in Medical Corps Hospital, established in the year 1930 to provide medical aid to the military personnel during World War-II. In the year 1947, it was a 100 bed hospital with all basic facilities. After independence the hospital was renamed, Pakistan Central Hospital and subsequently as Jinnah Central Hospital (“JCH”). In April 1953 an institute, namely Basic Medical CA 125-K/2016 etc. 2 Science Institute (“BMSI”), was established in a building situated at the site of JCH. In the year 1959 JCH and BMSI were amalgamated to create JPMC. Upto this point in time Karachi was the Capital of Pakistan. On 01.07.1959 the West Pakistan Administration, (merger of the federal territory of the Karachi) Order 1961, (Presidential Order No. 9 of 1961), came into effect; Karachi was thus merged into the province of West Pakistan, and ceased to be the capital of Pakistan. From this date onwards, Karachi fell under the legislative and administrative domain of the province. 3. Mr. Raza Rabbani, learned ASC for the appellants in Civil Appeal No.2307/2016, submitted that being a hospital was the primary function of JPMC, NICVD and NICH. The learned ASC submitted that JPMC and its derivatives, being NICVD and NICH, could not be treated as entities falling within Entry No. 16 of the FLL, merely due to some of their functions, which were incidental and ancillary to the main functions of being a hospital, supposedly falling within the scope of the said entry. Mr. Rabbani submitted that “health” and “hospitals” have always been in the exclusive domain of the province, and any exception in that regard, if ever intended, was specifically so provided for through a separate and distinct entry. By way of illustration, he referred to Entry No. 19 of Part-I of the FLL, which specifically CA 125-K/2016 etc. 3 provides for “Seamen’s and Marine hospital and hospitals connected with port quarantine”, and to Entry No. 23, of the former concurrent list, which pertains to “places for the reception or treatment of the mentally ill and mentally retarded”. However, the learned counsel emphasized that hospitals in general neither found place in the federal list, nor had they been on the concurrent list, and were thus exclusively in the provincial domain. In his endeavour to demonstrate that the subject entities were nothing but general hospitals, the learned counsel referred to various documents/material, highlighting the various aspects of the said hospitals. He emphasized that if at all there were any activities which may at all be perceived as pertaining to “research”, the same were entirely incidental and ancillary to the institutes’ primary function of being a hospital, and nothing more. 4. The learned counsel referred to the prospectus of the JPMC and submitted that the overwhelming majority of its various departments are those of a hospital and only a few relate to research based activities. He referred to the “quality and research based ranking of Pakistan High Educational Institutes (HEI) issued/ published by the Higher Education Commission of Pakistan (HEC) (page 371-374, Part-II CMA 15/19), to show that none of the said hospitals/ institutes CA 125-K/2016 etc. 4 find any place therein. The learned counsel submitted that the hospitals/institutes are also not mentioned in the list of “Research Institutes in Pakistan” posted at the website of ILM.com.pk, which according to him is the biggest educational portal in Pakistan (page-366, Part-II, CMA 15/19). According to the learned counsel, the research activities attributed to JPMC in its own publication/booklet, titled “JPMC- A National Pride” (pages 290-297, Part-II CMA 15/19), are the compilation of medical research, management of medical library and publication of a medical journal titled “Annals of JPMC”. The booklet admits that “the response of local researchers to submit papers in Annals of JPMC is lukewarm, may be due to non-recognition of Annals with the PMDC”. 5. Mr. Rabbani while concluding his arguments reiterated that JPMC and its derivative units had previously been under federal control; not because they were research institutes or because the federation has legislative competence over “health” and “hospitals” in general, but simply because Karachi had been the federal capital after independence; where the constituent elements of JPMC were set up. Elaborating his arguments Mr. Rabbani submitted that in relation to the federal capital territory, the federation has always had plenary power i.e. it could legislate in respect CA 125-K/2016 etc. 5 of matters exclusive to the federation, and concurrent, as well as those otherwise exclusive to the provinces within their respective territories. The province obviously could not legislate in respect of the federal capital territory and it was solely for this reason that the federation had been able to set up the constituent units of JPMC, and to exercise control over them. However, with the passage of time Karachi ceased to be the federal capital and became part of the erstwhile province of West Pakistan, and subsequently the Province of Sindh. The federation, therefore, ceased to have any competence or power over JPMC, and it ought to have been transferred to the province. The transfer however did not take place, and JPMC continued to remain under the federal control, which certainly was against the mandate of the constitution. The correction came about only at the time the various ministries, departments and organizations were being devolved/ transferred in pursuance of the 18th Constitutional Amendment. The subject transfer, according to Mr. Rabbani, was no more than a long deserved factual recognition and regularization of a situation that had in law, come about decades ago. 6. Mr. Farooq H. Naek, Senior ASC appearing for the Government of Sindh in Civil Appeals No. 125-K to 131- K/2016, at the very outset submitted that the present dispute CA 125-K/2016 etc. 6 is a dispute between the Federal Government and the Province of Sindh. As such, he submitted that only the Supreme Court was competent to adjudicate the dispute and the judgment rendered by the High Court is liable to be set aside for want of jurisdiction. He argued that the Honourable Sindh High Court in its impugned judgment had conclusively determined three issues; (1) that the three institutions do not fall under Entry No. 11 and 12 of Part II of the FLL, (2) that the institutions fall under Entry No. 16 of Part I of the FLL, and (3) that the transfer of the hospitals to the Province of Sindh was unauthorized and untenable because they had no relationship with the concurrent list which was abolished and entries whereof were devolved to the provinces under Article 270AA (8) of the Constitution. The learned Senior ASC submitted that the subject of public health was never a part of the Federal or concurrent list but the same has throughout our history vested exclusively in the provinces. Resultantly, the devolution/transfer of the hospitals to the Province was in view of the fact that the Federal Government could not legitimately exercise any executive authority over a hospital in any of the provinces in the face of inter alia, Articles 142(c) and 137 of the Constitution. 7. Mr. Salman Talibuddin learned Advocate General Sindh recapitulated the submissions advanced by M/s. Raza CA 125-K/2016 etc. 7 Rabbani, ASC and Farooq H. Naek, Sr ASC. Additionally, he argued that the JPMC ought to have been transferred to the Province of Sindh when the capital was moved from the city of Karachi and when the city resultantly became part of the Province of West Pakistan. To substantiate his view, he relied on Article 231(1) of the Constitution of 1956 which stipulated as follows: “All property and assets which immediately before the Constitution day were vested in Her Majesty’s for the purposes of the Federal Government shall, as from that day, vest in the Federal Government, unless they were used for the purposes which on the Constitution Day became purposes of the Government of a Province, in which case, they shall, as from that day, vest in the Provincial Government.” 8. The learned Advocate General also submitted that similar provisions were inserted in subsequent constitutional documents. Article 232(1) of the Constitution of 1962, Article 284 of the Interim Constitution of 1972 as well as Article 274 of the Constitution of 1973 are in para materia to Article 231 in the Constitution of 1956. Transferring or devolving the hospitals to the Province of Sindh he argued, was therefore righting a wrong that should have long been rectified. The Learned Advocate General also argued that decentralization was the sina qua non for heterogeneous countries like Pakistan where large segments of the citizenry remain CA 125-K/2016 etc. 8 marginalized by the centralist and patronage-based governance mechanism. 9. Mr. Salahuddin Ahmed, ASC for the Jinnah Sindh Medical University (‘JSMU’) in Civil Appeals 2306/2016, echoed the arguments advanced by Mr. Raza Rabbani. Recounting the Constitutional history of Pakistan, he submitted that the subject of public health and hospitals has, throughout our history, vested in the provinces, sometimes by way of an entry in the provincial list and sometimes by consigning it to the realm of residuary subject. He further submitted that neither the Province of Sindh nor the Federal Government assailed the transfer/devolution of the said hospitals before the Sindh High Court. He contended that in the absence of any objections by the Federal Government or the Province of Sindh, the employees working in these hospitals did not have the locus standi to challenge the transfer/devolution. While maintaining that the hospitals did not fall under the rubric of Entry No. 16 of the FLL, he contended that the Federal Government was vested with the power to transfer the hospitals under Article 173 of the Constitution, even if the said hospitals were considered to fall within the said entry. The mere fact that the notification of transfer does not refer to Article 173 could not preclude the Federal Government from exercising its powers under the said CA 125-K/2016 etc. 9 Article. He submitted that what has to be considered is whether the Federal Government had the power to transfer the hospitals or not. 10. Mr. Haider Waheed ASC appeared on behalf of the students and teachers of JSMU. He stated that the JPMC is an attached hospital of JSMU. He argued that in case the ownership and control of the JPMC is reverted to the Federation, JSMU would fall foul of the Medical and Dental Institutions (Recognition, Eligibility Criteria for Enhancement in Annual Admissions and Accreditation Standards) Regulations, 2018, especially Regulation 9 and 5 thereof. Said regulations stipulate that degrees from a medical university would be recognized only when the said university has an attached hospital of 1,750 beds. He contended that this requirement can only be filled by the JPMC in Karachi. He further diverted our attention to the fact that the JSMU has four constituent colleges, i.e. colleges which are managed and administered by JSMU in addition to nine affiliated colleges, i.e. private medical and dental colleges whose degrees are issued by JSMU. He submitted that setting aside the transfer/devolution of the JPMC would strip the JSMU of its status as a university and thus preclude it from awarding degrees. The fate of thousands of students pursuing their education from JSMU and the constituent and affiliated CA 125-K/2016 etc. 10 colleges thereof hinges on the outcome of the lis before us. Mr. Waheed argued that since the subject of public health is within the sphere of the provinces’ delegated powers, any executive authority exercised by the Federation over hospitals is constitutionally and legally barred. 11. Appearing for the respondents in C.A 125-K and 129/2016, Ms. Umaima Anwar Khan (with permission of this Court) argued that JPMC has never been a part of the Provincial List and always fell in the category as described by Entry No. 16 of the FLL. Relying on Sindh Revenue Board vs Civil Aviation Authority of Pakistan (2017 SCMR 1344, paragraphs 18 and 22) and Sui Southern Gas vs Federation of Pakistan (2018 SCMR 802, paragraphs 14(1) to 14(4)), she argued that entries in the FLL must not be interpreted in a “narrow or pedantic” manner but the same should be given the broadest possible import. She contended that the three hospitals were carrying out a number of research activities and would, thus, squarely fall within Entry No. 16 of the FLL. Moreover, it was submitted that the fact that public health and hospitals is admittedly a provincial subject would not obviate the Federal Government from owning and operating its own hospitals in the provinces. As regards the nature and character of JPMC for the purpose of its legislative classification she submitted that JPMC is a premier teaching CA 125-K/2016 etc. 11 institute, imparting higher medical education, and providing training to House Officers, Medical Graduates, medical students from SMC, nurses, technicians and paramedics in the various fields of medicine, surgery and its allied sub specialities. The institute she claimed, is affiliated with the University of Karachi for advance training leading to M.Phil. and Ph.D. degrees. According to the learned counsel more than 768 M.Phil., and 28 Ph.D. degrees have been awarded to the students of JPMC till date, and that its various departments are recognized/accredited by the College of Physicians and Surgeons Pakistan (CPSP) for FCPS, MCPS and MRCS diplomas in various specialities. Its department of thoracic medicine, for instance, was recognized as a centre for Post Graduate training and diploma courses, such as MCPS, FCPS and DTCD, and further that its department of ophthalmology has produced many FCPS and FRCS surgeons, which has also been recognized for second fellowship training in Vitreo-retinal surgery by CPSP. The learned counsel claimed that many pulmonologists practicing in the country have received their training at BMSI. The list annexed to the synopsis of arguments submitted by the learned counsel for the respondent, described as “Education and Training Section JPMC Annual Report 2019”, shows that varying number of doctors, students and trainees have been selected by the hospital for different professional degrees, CA 125-K/2016 etc. 12 diploma courses and training programmes. These include Post Graduate (PG), FCPS-II training, PG MCPS training, PG MS Training and PG MD, M.Phil. degree, etc., in different subjects. She submitted that the pursuit of a Ph.D. degree at JPMC essentially requires an extensive research work and the thesis based thereon has to be defended before a panel of experts, which is then required to be published in a HEC and PMDC approved journal. 12. The learned counsel also submitted that JPMC, NICD and NICVD, are considered active centres of research and have been acknowledged and recognized by Pakistan Council for Science and Technology as a scientific and technological research centres in Pakistan and that “Pakistan Medical Research Centre for Gastroenterology and Hepatology”, at JPMC is recognized by CPSP as a specialized research centre for training, research, publications and workshops. 13. Mr. Khurram Saeed learned Additional Attorney General for Pakistan appeared on behalf of the Federation and supported the impugned judgment. He argued that the transfer/devolution of the hospitals was ultra vires the Constitution and the same may be set aside. It may be interesting to note here that in the proceedings before the Sindh High Court, the Federal Government had supported the CA 125-K/2016 etc. 13 transfer/devolution of the three hospitals. One can only wonder as to what prompted the Federal Government’s change of heart in the present proceedings. 14. We have heard the learned counsel and have, with their able assistance, perused the relevant record. However, without going into the veracity of the rival claims detailed in paragraphs 4, 11 and 12 above, it may be observed here that the above claimed activities, pursuit and, engagements, cannot and do not overwhelm or eclipse the basic and primary character and nature of the JPMC being a tertiary care public hospital. The research, education and training activities are made possible at JPMC because of it being a hospital, and that too, with at least twenty eight different department for treatment of as many diseases and ailments and their different strands. It may also be relevant to note here that not all the departments and facilities at JPMC are being used for imparting education and training. There is no denying the fact that JPMC is one of the leading tertiary care public hospital in the country. It provides services not only to the mega cosmopolitan city of Karachi but to the people from all over Sindh and also from different parts of the entire country. Way back in the year 2006, the hospital had 1185 beds to provide in patient facility, covering all aspects of medical and surgical sub specialities (and in all probability CA 125-K/2016 etc. 14 the facilities may now have expanded further). Research, training and education, thus, contrary to being a derogation to its function as a hospital are in fact amongst the means, tools and resources through which its main purpose/function of providing the most adequate and the best possible health care and treatment actualizes. 15. While NICVD has evolved from the central heart clinic of ward 10 of JCH, the present day JPMC. NICVD, as such, was set up in 1963, and was so registered under the Societies Registration Ordinance 1860. The Society was later converted into a trust; through a trust deed dated 08.05.1976. The aims and objects of the Trust as set out in the deed (Clause-4), were “providing modern facilities for treatment of Cardiovascular diseases, setting up a teaching and training centre for postgraduate and undergraduate medical students and nurses and a centre for research into Cardiovascular Diseases and carrying on the Institute’s hospital, its attached units and subsidiaries for the treatment of persons suffering from Cardiovascular Diseases and development, research and training in the relevant fields.” 16. From the above, one can clearly appreciate that the primary and the predominant, object, purpose and function, of NICVD was “treatment of cardio vascular diseases”, and “running and managing institutes, hospitals, CA 125-K/2016 etc. 15 its attached units, and subsidiaries for the treatment of persons suffering from cardio vascular disease”. The proposed research and training was to be a part of the said purpose and effort. Later, in the year 1979, NICVD Ordinance was promulgated, section 6 whereof enumerates the function of the institute as follows: “6. Function of the Institute. The functions of the Institute shall be- (1) to undertake modern treatment of cardiovascular diseases; (2) to acquire latest physical facilities required for carrying out necessary investigation and treatment of cardiovascular diseases; (3) to seek and enter into cooperation with international and other foreign agencies with the prior approval of the Federal Government in furtherance of the objectives of the Institute; (4) to carry out research in Cardiovascular Diseases for prevention and control of cardiovascular diseases as well as for its treatment; (5) to undertake training of medical students and nurses, both under graduate and post-graduate, in cardiovascular diseases; and (6) to develop itself into a Centre of super excellence for the treatment of cardiovascular diseases.” The above does not leave any nature of doubt, or ambiguity regarding the fact that the predominant, rather the core function/purpose of the institute is that of a cardio vascular hospital, while training and research were to be employed merely as tools and means to achieve and realize such purpose. These activities were thus subservient to the principal object of providing the most appropriate and the best possible medical treatment and health care to its patients. The explicit language of the above provision, and the CA 125-K/2016 etc. 16 order of placement of the different functions set out therein, do not require any elaboration with regard to the primary and core function/purpose of the institute, being that of a hospital. It may also be observed here that the purported NICVD Ordinance 1979, was no impediment in the transfer of the institute; firstly for the reason that the Ordinance did not exist in the eyes of law, having been promulgated by the federal government beyond its constitutional mandate and in violation of the restriction placed on it by means of Article 142 (c) of the Constitution, as hospitals and public health (the entry to which the purported Ordinance pertains) never fell within the legislative sphere of the federation and have always, exclusively remained provincial subjects. More significantly and above all, the impugned transfer, though made belatedly, was in compliance with the constitutional mandate, as prescribed by Article 274 of the Constitution. 17. The origins of the NICH on the other hand lie in the paediatric ward of JPMC. It has now developed into a five hundred bed children hospital, where teaching and training is carried out merely as an ancillary activity. 18. As noted earlier, throughout the constitutional history of Pakistan, and even before independence, “public health, hospitals & dispensaries” have remained provincial subjects. Thus, in the Government of India Act, 1935, (which CA 125-K/2016 etc. 17 was the only instrument available for governing the country at the time of independence), the above subjects were enumerated in the provincial legislative list as entry No. 14. The very first constitution of this country, which received assent on the 2nd March, 1956, also entrusted the subjects of “public health sanitation, hospitals and dispensaries” to the provinces (Entry No. 26 of the Provincial Legislative List). The Constitution of 1962, which did not contain any provincial list and enumerated certain subjects only in the Central legislative list, left “public health” etc., for the provinces as residuary subjects. The interim Constitution of 1972 restored the provincial list with “public health” etc. as Entry 13 thereof. The Constitution of 1973 originally contained two legislative lists, a federal legislative list, and a concurrent legislative list. The above subjects did not find place in any of the two lists, and thus being residuary subjects fell within the legislative competence of the province, & remained under the executive domain thereof. The concurrent list was abolished through the 18th Constitutional Amendment. Some of the entries of the concurrent list were shifted by the Amendment to the federal list. Most however were omitted. 19. Hence in the above backdrop, and from the very inception, public health, hospitals, and matters relating thereto have remained under the provincial domain, and as CA 125-K/2016 etc. 18 such public hospitals in general have throughout been owned, controlled and managed by the provinces within their respective territories. However, in terms of “The Pakistan (Establishment of the Federal Capital) Order 1948, GCO No. 15 (Order of 1948), Karachi (where JPMC, previously known as JCH, was/is located,) was declared the Capital of Pakistan, whereas section 5 of the said Order provided that the executive authority for Karachi shall be exercised by the Governor General. Such authority also extended to matters enumerated in List-II of the Seventh Schedule to the Act of 1935, being the provincial legislative list, wherein “Public Health, “Hospital & Dispensaries” found place by way of Entry 14, hence JPMC (JCM of that time) was then being managed and controlled by the Federal/Central government. Thus, it can be seen that it was only by virtue of Section 5 of the Order of 1948 that the hospital, which otherwise fell within the provincial sphere of authority, was being managed and controlled by the Federal/Central Government. The situation however changed when after establishment of the Province of West Pakistan, under the “Establishment of West Pakistan Act, 1955, the federal capital territory of Karachi was, through the West Pakistan Administration (Merger of the federal territory of Karachi) Order, 1961, merged into the province of West Pakistan. Article 3 of the said merger Order 1961, provided that “the specified territory shall, with effect CA 125-K/2016 etc. 19 from the appointed day, cease to be administered as federal territory and be known as the Karachi division of West Pakistan and administered accordingly.” Under the West Pakistan Administration (Merger of federal territory of Karachi) Order, 1961 (enforcement), 1st July 1961 was appointed as the day when the said ordinance would come into force and thus the executive authority acquired by the federal/central government over the provincial subject through section 5 of the Establishment of the Federal Capital Territory Order 1948 would cease to exist. Thus, from the 1st day of July 1961, on which date the 1956 Constitution was in force, hospitals, along with public health, fell exclusively within the provincial domain. The subject hospitals thus ought to have been transferred to the province. Unfortunately, however, it took a few decades to so happen. 20. The fact that “public health” encompasses and embraces a large spectrum of responsibilities, activities, obligations, undertakings and functions hardly needs any emphasis. It involves and requires the deployment of various tools, means and resources; medical education, training and research, being the most crucial of them all, without which components no government can effectively provide appropriate and adequate health care to its people. This obligation undoubtedly includes prevention, diagnosis, CA 125-K/2016 etc. 20 diseases treatment, surveillance, prescription, invasive and non-invasive procedures, human resources development, and a lot more, which in turn essentially require a continuous research and training process/effort in different fields and spheres relating to health and medicine. Research, education and training are also essentially required to discover, diagnose, prevent, control and treat the various strains of different diseases and ailments which always keep mutating. Health System as described by the World Health Organization (WHO) is the sum total of all the organizations, institutions and resources whose primary purpose is to improve health. WHO defines ‘public health’ as “the art and science of preventing disease, prolong life and promoting health through organised efforts of society”. The University of Pittsburgh defines the terms as “the science of protecting life and providing health through education, policy making and research for diseases and injury prevention”. According to the Pan American Health Organization, “the principal or exclusive objectives of the health sector are to safeguard the health of individuals or population and the activities of the health sector institutions are designed to prevent and control diseases, care for the ill, conduct health research and training.” Research and training are therefore the most essential components of the public health, without which, the obligation to provide quality and affordable healthcare cannot CA 125-K/2016 etc. 21 be discharged, dispensed and fulfilled. It would therefore not be fair to say that health related research education and training cannot lawfully form part of a “hospital” and/or “public health”, in the context of the distribution of legislative, hence executive powers in a federal dispensation. Had it been the intent of the Constitution givers to assign general hospital with research, teaching and training facilities to the federal government, they could have conveniently created as a separate category for such hospitals and placed them on the FLL, like “Seamen’s and Marine hospital and hospitals connected with port quarantine”, which was so placed through entry No. 19, and the “places for the reception or treatment of the mentally ill and mentally retarded”, which category was enumerated in the erstwhile concurrent list as entry No.23. It should be kept in mind that classifying a general hospital as of the category falling under entry No.16 of the FLL, for its conducting research and/or imparting professional or technical training in the fields of health sciences would dissuade hospitals owned and operated by the provincial governments from pursuing such activities, for a fear of being so branded, and thus being taken over by the Federal Government. It is a matter of common understanding that in this day and age of scientific and technologic advancement and professionalism, and for keeping abreast with the social and scientific development around, it is CA 125-K/2016 etc. 22 imperative for us to conduct research, and undertake teaching and training in all the fields and disciplines. However, declaring such activity as a qualifiers for falling into entry No.16 of the FLL would prevent the various provincial departments, organizations and undertaking from indulging in the same, descending them into stalemate, redundancy nay retardation with disastrous results. 21. It is in recognition of the fact that research, education and training in health related disciplines are essential components of public health that public hospitals throughout Pakistan, other than those situated in the federal capital (irrespective of the extent and volume of their involvement in the aforesaid three activities) have been treated as Provincial entities only. They have thus been owned, managed, and controlled exclusively by the Provinces. By way of a few examples one may mention, The Children’s Hospital and The Institute of Child Health, Lahore, The Children Hospital and the Institute of Child Health, Multan, The Mayo Hospital, Lahore City, Lahore, The Service Institute of Medical Sciences/Services Hospital, Lahore, Postgraduate Medical Institute, Peshawar (PGMI, Pesh), and Postgraduate Medical Institute/Lahore General Hospital, Lahore (PGMI, Lhr/LGH, Lhr). CA 125-K/2016 etc. 23 22. The Children Hospital and The Institute of Child Health, Lahore is recognized by the College of Physicians & Surgeons Pakistan (CPSP) for postgraduate training. It is also recognized for house job by Pakistan Medical & Dental Council (PMDC). As per the institute’s website, 234 postgraduate trainees are currently getting training in 55 different disciplines and allied specialties of paediatric medicine, including various programme of fellowship, 2nd fellowship, & membership of CPSP and for MD, MS & M.Phil degrees. The institute is recognized for M. Phil Histopathology & MD Development & Behavioural Paediatrics with University of Health Sciences, Lahore. It is also conducting scientific research and encompasses a school of nursing, and a School of Allied Health Sciences. 23. The Children’s Hospital & The Institute of Child Health, Multan is a tertiary care teaching hospital, and is recognized by CPSP for its membership and fellowship programs in Medicine, Surgery, Neonatology, Anaesthesiology, Radiology etc. The University of Health Sciences, Lahore is running its MD, MS and DCH training programs at the Institute. The Institute has also been recognized by PMDC for imparting training for the aforementioned degree and Diploma programmes. The Institute also claims to be regularly involved in continuous medical educational activities and CA 125-K/2016 etc. 24 research projects in collaboration with National and International Institutes. 24. The School of Nursing, Mayo Hospital, Lahore, is imparting a three years general training of nursing, and presently 250 Nursing Students are getting training of nursing at the school, whereas CPSP has approved the East Medical Ward of Mayo Hospital for FCPS training in rheumatology, making it the third major centre in public sector hospital in Punjab, offering level IV qualification in super specialization. 25. The Services Institute of Medical Sciences/ Services Hospital, Lahore is recognized for, and offers FCPS training in 26 specialities. It is also recognized for MCPS training in various disciplines. 26. The Post Graduate Medical Institute, Peshawar (PGMI, Pesh) was established by the Government of KPK as a separate and independent Postgraduate Medical Institute at Lady Reading Hospital, Peshawar, to be a Provincial centre of excellence which could offer the highest quality tertiary health care services and to promote research in all field of health in the Province. The Institute now stands recognized as a teaching and training institute by PMDC, CPSP and Royal College of UK & Ireland. It is said to be serving the health CA 125-K/2016 etc. 25 needs of the Province as a major human resource development centre. The Institute is also engaged in conducting research and its research work is now regularly published in various national and international medical journals. PGMI Peshawar offers FCPS-II training and numerous diploma courses to health professionals throughout KPK. The institute consists of 41 teaching units at Lady Reading Hospital and Hayatabad Medical Complex and is accredited by the CPSP, it is also affiliated with Khyber Medical University. 27. The Postgraduate Medical Institute, Lahore/ Lahore General Hospital, Lahore (PGMI, Lhr/LGH, Lhr) is also engaged in imparting education and training in the various fields of medicine & surgery and is conducting training for various FCPS & MCPS programmes. 28. Adverting now to the nature of our constitutional dispensation, suffice to say that Pakistan is a Federal Republic (Article I of the Constitution). The preamble to our Constitution envisaged the State of Pakistan to be a federation, comprising of autonomous units (Provinces), enjoying power and authority as may accordingly be prescribed. Being true to its aspiration, the Constitution laid out a comprehensive scheme in consonance with a federal dispensation, some aspects whereof have been highlighted CA 125-K/2016 etc. 26 hereinafter. The principle and spirit of federalism and provincial autonomy has been reinforced and made watertight and sacrosanct, through the 18th Amendment, adopted by the Parliament with unanimity. 29. Dilating upon the concept of federalism in the context of the United States’ Constitution, KC Whease, former professor at the University of Oxford and Chairman of Rhodes Trust stated: “If we examine the American Constitution, we must conclude that, as a matter of law there laid down, the field of government is divided between the general authority and the regional authority which are not subordinate to each other, but coordinate with each other. In the words of a modern American historian, the general government “is a government supreme within its spheres, but that sphere is defined and limited”. As the tenth amendment made clear in 1971, “the power not delegated to the United States by the constitution nor prohibited by it to the states, are reserved as to the states respectively or to the people”. 30. In the Oxford Handbook of Indian Constitution, edited by Sujit Choudhry and Pratap Mehta, following commonly accepted features of federalism have been highlighted: (i) existence of two levels of government; a general government for the whole CA 125-K/2016 etc. 27 country and two or more regional governments for different regions within that country; (ii) distribution of competence or power- legislature, executive, judicial and financial between the general and the regional governments; and (iii) supremacy of the constitution- that is, the foregoing arrangements are not only incorporated in the constitution but they are also beyond the reach of either governments to the extent that neither of them can unilaterally change nor breach them. 31. Mr. AK Brohi in his book “Fundamental Law of Pakistan – 1958” has described “federalism” as a “device by which a system of double government is made to operate in one and the same State. It envisages a scheme of securing division of power between the National Government, on the one hand, and the Regional Governments, on the other hand, in such a way that, both of them discharge their law making and executive functions strictly within the sphere of their allotted jurisdiction…. The two governments accommodated within the framework of a federal polity are of coordinate authority and work independently of each other in the sphere marked out to them… in a Federal Constitution there are really two governments working side by side, and the operation of each one of them, within the limits defined by the CA 125-K/2016 etc. 28 Constitution, is independent of the control by the other. They are coordinate, independent organs sovereign power, each being a master in the sphere of its own allotted jurisdiction”. 32. And thus, in terms of Article 97 of the Constitution “subject to the Constitution, the executive authority of the Federation extends to the matter with respect to which Majlis-e-Shoora (Parliament) has powers to make laws”. Similarly, Article 137 of the Constitution grants such authority to the Provinces to the extent “of the matters with respect to which the Provincial Assembly has powers to make laws”. Article 142 of the Constitution, on one hand, through its clause (a), grants exclusivity to the Parliament in legislating with respect to matters enumerated in the FLL, and on the other, vide clause (c) thereof, secures the legislative power in respect of all the residual matters, i.e. the matters not listed in the FLL, exclusively in favour of the Provincial Assembly. The Article emphatically forbids the Parliament from legislating in such matters, save and except in respect of areas in the Federation that are not included in any Province, in relation whereto, as provided by clause (d), the Parliament exercises exclusive powers. However, in terms of clause (b) of Articles 142, law making in respect of criminal law, criminal procedure and evidence has been left open for the Parliament as well as the Provincial Assemblies to venture CA 125-K/2016 etc. 29 into. It can, therefore, be seen that the Constitution has laid down a well-defined scheme, prescribing the extent and limitation of the respective legislative and executive competence and sphere of the Federation and the Provinces, leaving no ambiguity regarding such demarcation, and no room either for the Federation, or the Provinces, to manoeuvre any encroachment over the exclusive domain of the other. The above delineation of power is so well secured that it is only in case where the President, being satisfied that a grave emergency, threatening the security of the country by (i) war or external aggression, or (ii) by internal disturbances beyond the power of a Provincial Government to control exists, proclaims emergency, as envisaged by Article 232(1) of the Constitution, that the Parliament may be able “to make laws for a Province or any part thereof, with respect to the matters not enumerated in FLL” [Article 232(2)(a)]. It may, in such an eventuality, by order assumes to itself, all or any of the functions of the Government of the Province, and make such incidental and consequential provisions as appear to it to be necessary and desirable for giving effect to the objects of the proclamation [Article 232(2)(c). However it is not just the satisfaction of the President that a grave emergency threatening the security of the country exists, that a proclamation can be made, but in case the emergency occurs because of internal disturbance beyond the power of a CA 125-K/2016 etc. 30 Provincial government to control, a resolution from the Provincial Assembly for making such imposition is, (as provided under clause-I of the said Article), an essential prerequisite. In case the President proceeds on his own, however, the proclamation is required to be placed before the two Houses of the Parliament for approval of each House within ten days. Yet, a law made by the Parliament which, but for a proclamation of emergency, would not have been competent to make, shall to the extent of incompetency, cease to have effect on the expiration of six months after the proclamation of emergency has ceased to be in force [Article 232(5)]. Furthermore in terms of clause 7(a) of the above Article a proclamation, within thirty days of its being made, shall be laid before a joint sitting of the Parliament, and shall cease to be in force at the expiration of two months, unless it has been approved by a resolution of the joint sitting by such time. Conversely, a proclamation shall subject to clause 7(a) above, cease to be in force upon a resolution disapproving the proclamation being passed by the majority of the total membership of the two Houses in a joint sitting. The federal character of our Constitution and provincial autonomy, hence, remain unimpeachable even during a war or external aggression, or internal disturbance beyond the power of a Provincial Government to control, resulting in a proclamation of emergency, issuance of which, requires a resolution of the CA 125-K/2016 etc. 31 relevant Provincial Assembly and in the second case, has to be approved by both Houses of the Parliament. It may also be recalled that the assumption of power to make laws with respect to matter beyond the FLL, and so also the assumption of the functions of the Provincial Government by the Federation are limited to the relevant Province, and that too only for a limited period. The Federal Government’s consequential ability to make any incidental provision also is limited to those that are inevitable to give effect to the object of the proclamation. Furthermore, the proclamation ceases to be in force, at the expiry of two months, unless it is approved by a resolution of the joint sitting of the Parliament before such expiry. 33. The basic feature, rather the spirit and soul of federalism, is the distribution of legislative powers between the federation and the province, with its core being provincial autonomy. Interpretation of constitutional provisions should thus be in consonance with the said principle, rather than in a manner that encroaches upon the space reserved for the provinces. The scope of an entry in the FLL should not be expanded or enlarged in a manner that infringes provincial autonomy. It is also to be kept in mind that the nature and character of the Constitution carries great significance and is of utmost relevance in construing the legislative entries and CA 125-K/2016 etc. 32 determining the scope and extent of the subjects assigned by it to the Federation and the Provinces. The Court should therefore avoid an expansive construction of a federal legislative power which renders redundant or nugatory the legislative field, power and authority assigned to the provinces, either expressly or as residuary, thus undermining provincial autonomy. 34. As regards fundamental rights, it may be observed here that indeed the State has guaranteed the protection of fundamental rights enshrined in the Constitution. Nonetheless, one must resist conflating the State with the federal government as the provincial and also the local governments too constitute the State. The State’s obligation with regard to fundamental rights is, therefore, to be fulfilled and discharged by all tiers of the government and all organs of the State as per their power, authority, obligation, and competence, strictly as prescribed under the Constitution. Under no notion can any of the said governments be stripped of their rights, authority, or power, nor can they be exempted from discharging or fulfilling their prescribed obligations. If allowed, this would result in complete anarchy and the Constitution would not only be undermined but would become redundant. It may also be relevant to observe here that the scope and extent of the “right to life”, as protected CA 125-K/2016 etc. 33 under Article 9 of the Constitution is so wide spread that it embraces almost every aspect and facet of human existence. Allowing the federation to assume power and authority under such a rubric would, thus, hardly leave anything for the provincial government to undertake, discharge, or fulfil, jeopardizing this nation’s collective odyssey towards greater provincial autonomy, as witnessed in the unanimous approval of the 18th Amendment. 35. It was in order to ensure the faithful and instant compliance of the delineation of power between the federation and the provinces and ultimately between the provincial and the local governments that the Parliament enacted Article 140A in the Constitution. Article 140A in its present form prescribes that “each province shall, by law, establish a local government system and devolve political, administrative and financial responsibilities and authority to the elected representatives of the local government.” Adhering to the above would certainly foster in the people, a greater sense of participation and reinforce and strengthen their faith in the State machinery of governance, bringing cohesion and giving strength to the country. 36. Disregarding the mandatory provisions of the Constitution and the categorical mandate prescribed thereunder would embolden and encourage those who are CA 125-K/2016 etc. 34 averse to the rule of law and have scant regard for the supremacy of the Constitution, thereby strengthening those who want to create dissention and discord in our national polity. 37. Now before parting with this note, it may be relevant to state that while a dissenting note has no legal force, the purpose of this endeavour is to appeal to the brooding spirit of the law in the hope that what may be dissent today becomes the law tomorrow. 38. Above are the reasons for my short order dated 17.01.2019. Judge ‘APPROVED FOR REPORTING’ (Aamir Sh.)

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE MAQBOOL BAQAR CIVIL APPEAL NOS.1255 AND 1256 OF 2012 (Against judgment dated 11.9.2012 of the Lahore High Court, Multan Bench passed in ICA Nos.104 and 105 of 2011) Zarai Traqiati Bank Ltd. … Appellant (In both cases) Versus Muhammad Asim Rafique and others (In CA 1255/12) Muhammad Farooq & others (In CA 1256/12) … Respondents For the Appellant: MianMuhammad Hanif, ASC. Mr. Mehr Khan Malik, AOR. For the respondents: Mr. Muhammad Suleman Bhatti, ASC. Date of hearing 16.2.2016 ORDER MAQBOOL BAQAR, J.-In response to an advertisement placed by the appellant-bank in the daily “Dawn” for the post of “Management Trainee Officer”. The respondents applied, they passed the written test and were selected in their interview, however, instead of issuing appointment letters, the appellant bank offered them a contract for on the job training as “Management Trainee” for a period of two years on payment of Rs.16,000/- per month and instead of the word ‘salary’ the word ‘stipend’ was used for such payment. Clause vii of the contract provided that the said contract will not constitute employee/employer relationship between the trainee and the appellant-bank, whereas clause ix provided for extension of the training beyond the original period of two years and clause xi stipulated that the training does not offer any guarantee of regular employment in the appellant-bank. The contract, however, through clause iv provided 30 working days annual leave. The respondents, in pursuance of the above were inducted in the appellant-bank. They were posted in different branches of the bank as Grade-II Officers and as Managers also. They were assigned the functions such as authorized to sanction loan, negotiate financial facility with the customers, evaluate the securities and to recovery the finance granted to the customers and thus were functioning as/and discharging their duties with power and authority as could be of any other officer/employee of the equivalent position in the bank. Upon expiry of the above contract, after the prescribed period of two years, the contract on 26.5.2010 was extended for a period of about seven months up to 31.12.2016. However, neither was the employment of the respondents regularized nor were their contracts extended thereafter and the bank instead advertised vacancies for appointment in place of the respondents. 2. We have noted that not only the applications that were invited by the appellant-bank and made by the respondents were, “to fill the positions of MTOs for operations of the Bank in Finance and Accounts”. To catch the attention of the prospective candidates to the advertisement, in fact “Career for Management Trainee Officers” was printed on the top of the advertisement in bold letters and offer/advertisement also promised “payment of competitive remuneration”. From the official summaries placed by the appellant- bank through CMA No.989 of 2015, also clearly show that the applications were in fact invited for the “posts of Management Trainee” and that in response to the advertisement, the appellant- bank received 8392 applications which were short listed to 1942. The candidates were further short listed for written test and thus 231 candidates were put to such test. Though the candidate securing 45% and above marks in the test were to be considered eligible for interview, however, keeping in view the vacancy position only 30 candidates were called for interview conducted by the Designated Committee and on the recommendations at of the Committee, the competent authority decided that the respondents may be considered for selection in the Head Office and the fields and after that they may be preferred for posting in concerned zone with high merit. The summary/office note further reveals that the above trainees were to be accepted for on job training initially for a period of two years and were to be considered for regular appointment on expiry of contract period upon satisfactory performance and availability of vacancies and further that in case any management trainee fails to join, the next candidate with high merit may be offered the position for posting. The respondents were also required to furnish medical fitness certificate issued by the authorized medical practitioners. (The Federal Government imposed ban) Judge Judge Islamabad the, 14th June 2013 (Aamir Sh.) ‘NOT APPROVED FOR REPORTING’

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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 CIVIL APPEAL NO.1257 OF 2012 [On appeal against the judgment dated 27.09.2012 passed by the Islamabad High Court, Islamabad, in W.P.No.322 of 2012] SME Bank Ltd through its President Islamabad & another …Appellant(s) VERSUS Izhar ul Haq …Respondent(s) For the Appellant(s) : Mr. Tariq Mehmood, Sr. ASC Syed Riffaqat Hussain Shah, AOR For the Respondent(s) : Mr. Abdul Rahim Bhatti, ASC Mr. M.S.Khattak, AOR Date of Hearing : 15.04.2019 JUDGMENT GULZAR AHMED, J.— The Respondent was employed as an Executive Vice President (EVP) with the appellant-Bank. The appellant had issued Voluntary Separation Scheme (VSS) and it seems that the respondent had applied under it. At the same time, the respondent was facing disciplinary proceeding. In the disciplinary proceedings, he was found guilty of committing irregularities and gross negligence of the highest degree on all charges relating to TAAS Securities an 8-CA No.1257 of 2012.doc - 2 - institution. The appellant vide Office Order dated 02.06.2003 imposed such penalty. This Office Order of penalty was challenged by the respondent by filing Writ Petition No.2702 of 2006 in the Lahore High Court, Rawalpindi Bench, with the following prayer: a) Declare the impugned Order dated 02.06.2003 may kindly be set-aside by extending the benefits of the Judgments mentioned above; b) Direct the respondents to release the benefits of Voluntary Separation Scheme with 20% mark up and the petitioner may also be paid the salaries and allowances for the period from 17.01.2002 to 02.06.2003; and c) Direct the respondents to calculate the benefits of VSS on the basis of last pay drawn by the petitioner”. Although the appellant seems to have contested the said writ petition but vide judgment dated 28.10.2011 the said writ petition was allowed by granting the following relief to the respondent: “11. The ultimate inference which floats from the above discussion is that the petitioner is entitled for recovery of V.S.S. benefits. Resultantly, the instant writ petition is accepted and the respondents are directed to pay Voluntary Separation Scheme benefits to the petitioner.” This judgment of the High Court was not challenged either by the appellant or the respondent. The respondent was paid benefit of VSS vide letter dated 05.01.2012, which payment was received by the respondent ‘under protest’ as stated by his counsel. The respondent then filed another Writ Petition No.322 of 2012 in the Islamabad High Court, Islamabad, containing the following prayer: “i) Salaries and allowances for the period from 17.01.2002 to 02.06.2003; ii) VSS benefits on the basis of last pay drawn i.e. 02.06.2003 with 20% mark up”. This writ petition was also contested by the appellant. After hearing learned counsel for the parties, learned Judge-in- Chambers of the Islamabad High Court passed the impugned judgment dated 27.09.2012, accepting the said writ petition and specifically directing the appellant to comply with the judgment dated 28.10.2011, in letter and spirit. Petition for leave to appeal 8-CA No.1257 of 2012.doc - 3 - was filed by the appellant, in which leave was granted by this Court vide order dated 31.12.2012. 2. We have heard learned counsel for the parties and have also gone through record of the case. 3. Mr. Abdul Rahim Bhatti, learned ASC for the respondent, at the outset, has contended that the appeal before this Court is not maintainable as against the impugned judgment the appellant had a remedy of filing an Intra-Court Appeal (ICA) in the High Court. He contended that without availing such remedy, the present appeal is liable to be dismissed. 4. Mr. Tariq Mehmood, learned Senior ASC for the appellants, on the other hand, has opposed the submissions and contended that remedy of ICA was not available to the appellants for that under the RDFC Employees Service Regulations, 1989, by which penalty was imposed upon the respondent, there was remedy of appeal and review under Regulation No.10.7, which provides that an employee shall have the right of appeal from or of making application for review of any order imposing on him any of the penalties and the respondent claiming these Regulations to be statutory. Thus, the remedy of ICA will stand excluded altogether to the appellant per section 3 of the Law Reforms Ordinance, 1972 (Ordinance of 1972), and in this respect reliance was placed upon a judgment of five-member Bench of this Court in the case of Mst. Karim Bibi & others v. Hussain Bakhsh & another [PLD 1984 SC 344]. 5. We would directly like to examine the said judgment of this Court cited at the Bar by the learned Senior ASC for the appellant and in this regard, reference is made to para 8 thereof. Relevant portion is as follows: “8. After giving our anxious consideration to the arguments urged in support of this appeal we are, however, not impressed by any of the contentions raised. The test laid down by the Legislature in the proviso is that if the law applicable to the proceedings from which the Constitutional Petition arises provides for at least one appeal, against the original order, then no appeal would be 8-CA No.1257 of 2012.doc - 4 - competent from the order of a Single Judge in the constitutional jurisdiction to a Bench of two or more Judges of the High Court. The crucial words are the "original order". It is clear from the wording of the proviso that the requirement of the availability of an appeal in the law applicable is not in relation to the impugned order in the Constitutional Petition, which may be the order passed by the lowest officer or authority in the hierarchy or an order passed by higher authorities in appeal, revision or review, if any, provided in the relevant statute. Therefore, the relevant order may not necessarily be the one which is under challenge but the test is whether the original order passed in the proceedings subject to an appeal under the relevant law, irrespective of the fact whether the remedy of appeal so provided was availed of or not. Apparently the meaning of the expression "original order" is the order with which the proceedings under the relevant statute commenced.” 6. It is admitted fact that disciplinary proceedings were conducted against the respondent under the Regulations stated above, which ultimately resulted into imposition of penalty vide Office Order dated 02.06.2003, against which under the said Regulations, which are stated by the respondent to be statutory, the remedy of appeal and review is provided. We are of the view that where the proceedings from which the writ petition has arisen provided for either review, revision or appeal, in terms of proviso to section 3 of the Ordinance of 1972, remedy of ICA will not be available against the judgment passed by the learned Single Judge in the writ petition. Thus, the appeal before this Court is competent. 7. During the course of arguments, it was plainly conceded by the learned ASC for the respondent that Writ Petition No.322 of 2012 is a continuation of the proceeding under which penalty was imposed upon the respondent and that the respondent was claiming benefit by way of implementation of the judgment passed by the High Court in the earlier Writ Petition No.2702 of 2006. Learned ASC for the respondent was then confronted with the question as to whether the writ petition is maintainable for obtaining implementation of the judgment passed by the High Court in the earlier writ petition, he, in the first place, referred to the provision of Article 187(2) of the Constitution and contended that the High Court is competent to execute its own judgment under this provision. On reading of Article 187 of the Constitution, it is apparent that it gives powers to the Supreme Court to issue such directions, orders or decrees as may be necessary for doing 8-CA No.1257 of 2012.doc - 5 - 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, while as per clause (2) thereof such directions, order or decree shall be enforceable throughout Pakistan and shall, where it is to be executed in a Province, or a territory or an area not forming part of a Province but within the jurisdiction of the High Court of the Province, be executed as if it had been issued by the High Court of that Province. Thus, this provision of the Constitution does not offer any help to the respondent for it deals with the execution of directions, orders and decree of the Supreme Court by High Court. The learned ASC for the respondent then referred to the provision of sub-para (i) of paragraph (c) of clause (1) of Article 199 to argue that the judgment passed in Writ Petition No.2702 of 2006 could be enforced through this Article of the Constitution. We have asked the learned ASC to cite any precedent but no such precedent was cited by him before us. Thus, his second Writ Petition No.322 of 2012 was not maintainable before the Islamabad High Court. 8. What we understand is that pursuant to the penalty imposed upon the respondent, he filed Writ Petition No.2702 of 2006 in which the only relief granted to him, out of the prayers made by him, was that of VSS benefit be paid to him and no other prayer, contained in the said writ petition, was allowed by the High Court. The respondent neither sought review of the said judgment nor challenged the same before this Court rather the judgment itself was accepted by him and the payment made to him under such judgment was received by him ‘under protest’. Receiving of benefit ‘under protest’ was of no consequence for that the respondent admits that such payment settled his dues of VSS but the remaining dues, as was prayed by him in Writ Petition No.2202 of 2006, were not granted to him. If that be the case, the respondent ought to have taken measures for granting him other prayers containing in the earlier writ petition either by seeking review or by filing proceeding before this Court, which he did not do. The VSS benefits having been paid to him, which were only relief allowed by the High Court vide its judgment dated 8-CA No.1257 of 2012.doc - 6 - 28.10.2011 and same having been accepted by the respondent, he cannot claim that full relief has not been granted to him by the appellant. Further, the principle of res judicata with all its force will apply to the case of the respondent for that his second writ petition against the appellant will not be maintainable for granting him the relief, which was not allowed to him by the High Court earlier for that the law assumes that such relief stood specifically denied to him by the High Court while passing judgment dated 28.10.2011. This being the position apparent on the record, after having heard learned counsel for the parties and going through the record, by short order we had allowed the appeal and set aside the impugned judgment dated 27.09.2012. These are the reasons of our short order of even date. JUDGE Bench-II ISLAMABAD 15.04.2019 APPROVED FOR REPORTING JUDGE *Hashmi* JUDGE 8-CA No.1257 of 2012.doc - 7 - 2012 SCMR 366 SUPREME-COURT Side Appellant : GHULAM AKBAR LANG Side Opponent : DEWAN ASHIQ HUSSAIN BUKHARI 2005 SCMR 699 SUPREME-COURT Side Appellant : Messrs M.K.B. INDUSTRIES (PVT.) LTD. and others Side Opponent : CHAIRMAN, AREA ELECTRICITY BOARD, WAPDA

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE MANZOOR AHMAD MALIK MR. JUSTICE KHILJI ARIF HUSSAIN CIVIL APPEALS NO.1264 TO 1270/2006, 975/2007, 229/2010, 716, 717, 722, 723/2011, 697/2015 AND C.M.A.NO.793/2008 IN CIVIL APPEAL NO.1574/2007 (Against the judgments dated 27.1.2006/30.3.2006, 30.4.2009/15.4.2011/5.5.2011/ 12.11.2014 of the High Court of Sindh, Karachi passed in ITA No.178/1999, ITR No.102/1991, Ref. Case No.130/1997, ITR No.131/1997. ITA No.177/1999, ITA No.217/1999, ITA No.208/1999, ITR No.185/1997, ITRA No.531/2000, ITA No.295/1997, ITA No.296/1997, ITA No.929/2000, ITA No.930/2000 & ITC No.482/2004) Commissioner of Income Tax …in C.A.1264/2006 Commissioner of Income Tax …in C.A.1265/2006 Commissioner of Income Tax …in C.A.1266/2006 Commissioner of Income Tax …in C.A.1267/2006 Commissioner of Income Tax …in C.A.1268/2006 Commissioner of Income Tax …in C.A.1269/2006 Commissioner of Income Tax …in C.A.1270/2006 Commissioner of Income Tax …in C.A.975/2007 Commissioner of Income Tax …in C.A.229/2010 Commissioner Inland Revenue …in C.A.716/2011 Commissioner Inland Revenue …in C.A.717/2011 Commissioner Inland Revenue …in C.A.722/2011 Commissioner Inland Revenue …in C.A.723/2011 Commissioner Inland Revenue …in C.A.697/2015 Commissioner of Income Tax …in C.M.A.793/2008 in C.A.154/2007 …Appellant(s) VERSUS Balochistan Concrete and Block Works Ltd. …in C.A.1264/2006 M/s Balochistan Wheels Ltd. …in C.A.1265/2006 M/s Automotive Battery Co., Ltd. …in C.A.1266/2006 M/s Balochistan Wheels Ltd. …in C.A.1267/2006 M/s Bolan Casting Ltd. …in C.A.1268/2006 M/s Automotive Battery Co., Ltd. …in C.A.1269/2006 M/s Automotive Battery Co., Ltd. …in C.A.1270/2006 M/s Allied Garments Industries (Pvt.) Ltd. …in C.A.975/2007 M/s Bolan Casting Ltd. Karachi …in C.A.229/2010 M/s Asia Board Industries Ltd. …in C.A.716/2011 M/s Asia Board Industries Ltd. …in C.A.717/2011 M/s Diamond Food Industries (Pvt.) Ltd. …in C.A.722/2011 M/s Diamond Food Industries (Pvt.) Ltd. …in C.A.723/2011 M/s NP Spinning Mills Ltd. …in C.A.697/2015 Shah Nawaz Textile Mills Ltd. …in C.M.A.793/2008 in C.A.154/2007 …Respondent(s) For the appellant(s): (in all cases) Dr. Farhat Zafar, ASC Civil Appeals No.1264/2006 etc. -: 2 :- Mr. Muhammad Siddiq Mirza, ASC Mr. Shakeel Ahmed, ASC Mr. Muhammad Habib Qureshi, ASC Raja Abdul Ghafoor, AOR For the applicant(s): Nemo (in C.M.A.793/2008) For the respondent(s): Mian Allah Nawaz, Sr. ASC (in C.A.1268/2006) Mr. Salman Pasha, ASC (in C.As.716 & 717/2011 & 697/2015) Ex-parte (in C.As.1264, 1270/2006 & 975/2007) Not represented (in C.As.229/2010, 722 & 723/2011) Date of hearing: 16.11.2016 … ORDER MIAN SAQIB NISAR, J.- These appeals, by leave of the Court, involve the following questions:- (i) whether the losses incurred by an industrial undertaking during the period of tax holiday under the Income Tax Ordinance, 1979 (the Ordinance) which could not be fully set- off against the income earned during such period, can be carried forward and set-off against the income earned in the assessment years beyond the tax holiday period; and (ii) whether unabsorbed depreciation allowance can be carried forward to the assessment years beyond the tax holiday period. 2. The brief facts are that the respondents, industrial undertakings involved in the manufacturing of different goods, claimed exemption from charge to tax under various clauses (particularly Clauses 118D, 119, 122 and 125) of the Second Schedule of the Ordinance for various assessment years. However they suffered losses which could not be fully set-off against the income earned by them during the period of tax holiday and therefore claimed that such losses be carried forward and set-off against the income earned in the assessment years beyond the tax holiday period (note:- in Civil Appeals No.716 and 717/2011 the respondents sought Civil Appeals No.1264/2006 etc. -: 3 :- carrying forward of unabsorbed depreciation allowance). This claim was declined by the Assessing Authority. The matters came before the Commissioner of Income Tax, the Income Tax Appellate Tribunal (the Tribunal) and finally the learned Division Bench of the High Court of Sindh which, while deciding the tax references, held that the losses (and the unabsorbed depreciation allowance) sustained during the tax holiday could be carried forward against income earned thereafter. Aggrieved, the appellant/department approached this Court. Leave was granted through numerous orders to consider the questions highlighted in the opening paragraph of this opinion. 3. Learned counsel for the appellant/department submitted that losses incurred during the tax holiday period which remained unabsorbed could not be carried forward and set-off against the profits and gains earned by the respondents in the assessment years beyond such period; the learned High Court of Sindh in the impugned judgment(s) has erred by relying upon precedents regarding set-off of unabsorbed depreciation of plants, buildings, machinery etc. which was not relevant to losses sustained during the tax holiday period; the use of the word ‘loss’ in the definition of ‘income’ means that it cannot be carried forward and is confined to that particular year; and that there is no law that allows losses incurred in tax holiday period to be adjusted in the tax period. Reliance was placed upon Commissioner of Income Tax Vs. Messrs Anwar Textile Mills Ltd (1989 PTD 1016), In the matter of the Income-Tax Assessments of Messrs Sheikco Ltd., Ismailabad, Multan (PLD 1962 Lah 870), Commissioner of Income Tax, Companies Zone-I, Lahore Vs. Messrs Grays Leasing Company Limited (2005 PTD 2093), Messrs Pioneer Bank Ltd. in liquidation Official Liquidator, State Bank of Pakistan, Dacca Vs. The Civil Appeals No.1264/2006 etc. -: 4 :- Commissioner of Income-Tax, East Pakistan, Dacca (1968 PTD 520) and The Commissioner of Income-Tax, East Zone, Karachi Vs. Messrs Iqbal Engineering Works and another (PLD 1986 SC 556). 4. Contrarily, learned counsel for the respondents contended that the purpose of tax exemptions was to promote and encourage certain industries; Sections 34 and 35 of the Ordinance specifically excludes carrying forward of speculation losses under Section 36 but nowhere have losses incurred during the tax holiday been excluded from being carried over; once the tax holiday period is over, the normal law comes into play on which basis assessments are to be made, and such law provides that if an assessee suffers losses he would be entitled to adjustment, irrespective of whether there were tax holidays or not; the definition of ‘income’ in Section 2(24) of the Ordinance includes ‘loss’ and hence the Assessing Officer erred in finalizing the assessment at ‘nil’ income without giving any findings regarding the quantum of income or loss. Reference was made to Commissioner of Income Tax, Lahore and Chairman FBR, Islamabad and others Vs. Messrs Prosperity Weaving Mills (Pvt.) Ltd. and others (2011 SCMR 177). 5. Heard. According to Section 14 of the Ordinance, incomes or classes of income, or persons or classes of persons specified in the Second Schedule shall be exempt from tax, under the Ordinance, subject to the conditions and to the extent specified therein, provided that, where any income which is exempt from tax under any provision of the Second Schedule, such income, as may be specified in the said Schedule and subject to such conditions as may be specified therein, shall be included in the total income, so however that the tax shall not be payable in respect of such income. Clauses 118D, 119, 122 and 125 of the Second Schedule all provide that industrial undertakings (which Civil Appeals No.1264/2006 etc. -: 5 :- fulfil the conditions enumerated therein) set up during various time periods were exempt from paying tax upon their profit and gains. It is undisputed that the respondent/industrial undertakings were entitled to such exemption, rather the only issue is whether they were entitled to carry forward the losses they incurred during the tax holiday period and have it set-off against the income earned in the assessment years beyond the tax holiday period. Section 34 of the Ordinance provides that:- “34. Set-off of losses.- Where an assessee sustains a loss (not being a loss to which section 36 or section 37 applies) in any assessment year under any head of income specified in section 15, he shall, subject to clause (v) of sub-section (1) of section 23 be entitled to have the amount of the loss set-off against his income (other than income to which sub-section (7) or (9) of section 12 applies), if any, under any other head assessable for that assessment year.” Although Section 34 ibid restricts the set-off of loss to the income of that particular assessment year, Section 35 of the Ordinance allows for business losses to be carried forward, the latter of which reads as under:- “35. Carry forward of business losses.- Where an assessee sustains a loss in any assessment year under the head `Income from business or profession’ (not being a loss to which section 36 applies) and the loss cannot be wholly set-off under section 34, so much of the loss as has not been set-off, or the whole of the loss where the assessee has no income under any other head, shall be carried forward, subject to clause (v) of sub-section (1) of section 23, to the following assessment year and set-off against the profits and Civil Appeals No.1264/2006 etc. -: 6 :- gains, if any, of such business or profession assessable for that year if such business or profession continues to be carried on by the assessee for that assessment year; and if the loss cannot be wholly set-off in this manner, the amount of the loss not so set-off shall be carried forward to the following assessment year, and so on, but no loss shall be carried forward to more than six assessment years immediately succeeding the assessment year for which the loss was first computed: Provided that…” Thus the conditions of the right to carry forward business losses for the purposes of set-off are as follows:- (i) The loss should fall under the head ‘income from business or profession’ defined in Section 22 of the Ordinance; (ii) It should not be a loss to which Section 36 of the Ordinance applies, i.e. speculation losses; (iii) The loss shall be carried forward to the following assessment year and set-off against the profits and gains of such business or profession assessable for that year. In other words, the loss being carried forward cannot be set- off against a source other than the profits and gains of such business or profession; (iv) The business or profession in which the loss was originally sustained should continue to be carried on by the assessee for the assessment year in which carried forward loss is sought to be set-off; (v) A loss cannot be carried forward for more than six years from the assessment year for which the loss was first computed; (vi) A loss cannot be carried forward unless it has been determined in pursuance of a return filed under Section 55 Civil Appeals No.1264/2006 etc. -: 7 :- of the Ordinance. In order to be entitled to carry forward a loss, the assessee must submit a return under Section 55 ibid and have an assessment made for the year in which he has incurred the loss. The Assessing Officer has to notify to the assessee by an order in writing the amount of the loss as computed by him which the assessee is entitled to have carried forward. Therefore under the Ordinance, losses of assessees can be carried forward and subsequently set-off according to the provisions of Section 35 of the Ordinance. No exception has been created vis-à-vis tax holidays, whereby such periods have been excluded for the purposes of carrying forward and setting off of losses. While it is clear, upon a perusal of the Ordinance, that it does not preclude losses incurred during tax holidays from being carried forward and set-off subsequently as per Section 35 thereof, nevertheless if the interpretation adopted by the learned counsel for the appellant/department was also possible, or there existed an ambiguity, in such a situation an interpretation favourable to the tax payer should be preferred as settled by this Court in Pakistan through Secretary Finance and others Vs. Messrs Lucky Cement and another (2007 SCMR 1367). Regarding the case of Iqbal Engineering Works (supra) relied upon by the learned counsel for the appellants, it involved an interpretation of Section 24 of the Income Tax Act, 1922 and the issue was regarding set-off of losses in the context of a registered firm and therefore is not relevant to the instant matter. Therefore, in our candid view, the respondents/industrial undertakings were entitled to carrying forward and setting off of the losses they incurred during the tax holiday period in accordance with the provisions of Section 35 of the Ordinance. In light whereof, Civil Appeals No.1264 to 1270/2006, 975/2007, 229/2010, 722 and Civil Appeals No.1264/2006 etc. -: 8 :- 723/2011 and 697/2015 are dismissed. Regarding Civil Appeal No.1574/2007 dismissed for non-prosecution vide order dated 27.2.2008, for the reasons stated in C.M.A.No.793/2008, the same is allowed and the main appeal (C.A.No.1574/2007) is restored to its original number and is dismissed for the reasons enumerated above. 7. As regards Civil Appeals No.716 and 717/2011, the issue involved therein is regarding carrying forward of unabsorbed depreciation allowance. Section 38(6) of the Ordinance provides that:- “Where, in making an assessment for any year, full effect cannot be given to the allowances referred to in clause (v) of sub-section (1) of section 23 owing to there being no profits or gains chargeable for that year or such profits or gains being less than the allowance, then, subject to clause (v) of sub-section (1) of section 23 and the provisions of sub-section (7), the allowance or part of the allowance to which effect has not been given, as the case may be, shall be added to the amount of the allowance for depreciation for the following year and be deemed to be part of that allowance, or if there is no such allowance for that year, be deemed to be the allowance for that year and so on for succeeding years.” (Emphasis supplied) While Section 38(6) of the Ordinance allows for carrying forward of unabsorbed depreciation allowance, an exception has been provided under Rule 3A of the Third Schedule of the Ordinance which (rule) reads as under:- “(3A) Where any building, furniture, machinery or plant is used for the purposes of business or profession during any income year for which the income from Civil Appeals No.1264/2006 etc. -: 9 :- such business or profession is exempt from tax, depreciation admissible under sub-rule (1) shall be deemed to have been allowed in respect of the said income year and after expiration of the exemption period written down value of such assets shall be determined in accordance with sub-clause (ii) of clause (b) of sub-rule (7) of rule 8.” (Emphasis supplied) Rule 3A ibid provides for depreciation allowance to be deemed to have been allowed, which in turn means that it has been given due effect for the purposes of Section 38(6) of the Ordinance and therefore cannot be carried forward to subsequent assessment years. Unlike the case with carrying forward of losses under Section 35 of the Ordinance, there exists a clear exception in the form of Rule 3A of the Third Schedule to carrying forward of unabsorbed depreciation allowances under Section 38(6) of the Ordinance. In the case of Anwar Textile Mills (supra) relied upon by the learned counsel for the appellants, the question that arose before the learned High Court of Sindh was whether the assessee was entitled to carry forward the unabsorbed amount of depreciation after the expiry of the tax holiday period and the Court held that the right to carry forward unabsorbed depreciation to the following year was conferred by proviso (b) of Section 10(2)(vi) of the Income Tax Act, 1922 and the applicability of such provision was not excluded, therefore the assessee was allowed to carry forward the unabsorbed depreciation amount. However, in the instant matter, as mentioned above, undoubtedly an exception has been provided to carry forward unabsorbed depreciation allowance by virtue of Rule 3A of the Third Schedule to the Ordinance. Civil Appeals No.1264/2006 etc. -: 10 :- Therefore, we opine that the respondent/industrial undertaking (in Civil Appeals No.716 and 717/2011) is not entitled to carry forward to the post-tax holiday period, the unabsorbed depreciation allowances that arose during the tax holiday period. In light whereof, Civil Appeals No.716 and 717/2011 are allowed and the impugned judgments are set aside. JUDGE JUDGE JUDGE Announced in open Court on 25.11.2016 at Islamabad Approved For Reporting Ghulam Raza/*

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{'id': 'C.A.1264_2006.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE FAISAL ARAB CIVIL APPEAL NO. 1291 OF 2005 (On appeal against the judgment dated 1.1.2003 passed by the High Court of Sindh, Karachi in Special Customs Appeal No. 142/2002) Collector of Customs … Appellant VERSUS M/s D.G. Khan Cement Co Ltd …Respondents For the Appellant: Raja Muhammad Iqbal, ASC For the Respondent: Mr. Salman Akram Raja, ASC Dates of Hearing: 13.04.2016 & 27.04.2016 JUDGMENT FAISAL ARAB, J.- In order to encourage industrialization in certain areas of the country, the Federal Government from time to time has been granting exemptions from customs duty and sales tax. One such incentive was contained in SRO 484(I)/92 dated 14.05.1992. Under this notification, plant and machinery, not manufactured locally, imported for setting up a new unit or for expansion or balancing, modernization and replacement of an already existing unit in certain areas was granted exemption from the whole of the customs duty and sales tax subject to fulfilling certain conditions. CIVIL APPEAL NOs. 1291-K/2005, 847/2009, 427-K/2009, 428-K/2009 2 2. The respondent company, a cement manufacturing enterprise, imported three Caterpillar Off-Highway dump trucks, which were shipped to Karachi port through S.S. ‘Chitral’. Letter of Credit for the import of such trucks was opened on 27.2.1995 and the Bill of Entry was filed on 29.6.1995 i.e. well before the arrival of the ship. Upon arrival of the ship on 16.7.1995, benefit of total exemption from customs duty and sales tax was sought under Notification No. SRO 484(I)/92 dated 14.05.1992, but the same was denied to the respondent company for two reasons. Firstly it was maintained that the exemption was applicable only to such imports that arrived at the port on or before 30.06.1995 whereas in the present case the ship carrying the Off-Highway dump trucks arrived on 16.7.1995. The other reason for denying benefit of exemption was that the Off-Highway dump truck being mobile vehicle, cannot be termed as a plant hence does not fall within the ambit of SRO 484(I)/92. The customs authority thus assessed the consignment on the basis of PCT Heading that is applicable to dump trucks and imposed 30% Ad Volerum duty as well as the applicable rate of sales tax and other charges. 3. Having being denied the benefit of exemption under SRO 484(I)/92 dated 14.05.1992, the respondent company challenged the assessment of the customs authority in the Lahore High Court and on the basis of an interim order obtained release of the consignment upon furnishing personal bonds of its directors. The Lahore High Court then relegated the respondent company to contest the matter before the forum provided under the Customs CIVIL APPEAL NOs. 1291-K/2005, 847/2009, 427-K/2009, 428-K/2009 3 Act. All the three forums upto the Customs and Sales Tax Appellate Tribunal held that the exemption cannot be availed on Off-Highway dump trucks on the ground that the same being vehicles cannot be termed as ‘plant’. The respondent company challenged the decision of the Tribunal before the High Court of Sindh in Special Customs Appeal No. 142/2002. The High Court after framing the question of law “Whether Dump Trucks imported by the appellant fall within the purview of plant and machinery as contemplated in SRO-484(I)/92 dated 14.5.1992”, vide impugned judgment dated 1.1.2003 answered it in the affirmative. Being aggrieved by such decision, the appellant filed CPLA No. 256- K/2003 before this Court giving rise to the present appeal. 4. Mr. Raja Muhammad Iqbal, learned counsel for the appellant, argued that Off-Highway dump trucks imported by the respondent company being mobile vehicles, fall under PCT Heading 8704.1090 and do not fall under any entry listed in PCT Heading 84 and 85, which lists the items of machinery, appliances and equipments, therefore not being part of the plant of respondents’ factory it was not entitled to claim exemption under SRO 484(I)/92 dated 14.05.1992. He next submitted that the power to classify any item for customs tariff lies exclusively with the government and as the Off-Highway dump truck is separately classified in PCT headings and not included in the items of machinery listed in SRO 484(I)/92, the same does not fall within the ambit of plant. In support of this contention he relied upon the case of Big Mak Foods Ltd Vs. Deputy Collector of Customs (1994 SCMR 537). He CIVIL APPEAL NOs. 1291-K/2005, 847/2009, 427-K/2009, 428-K/2009 4 next argued that in the present case the Bill of Entry was filed on 29.6.1995 at the time when the ship carrying the consignment in question had not even arrived. The ship arrived on 16.7.1995 and at that time the benefit of exemption granted under SRO 484(I)/92 was no longer available as by that time the period of exemption had already expired. He submitted that in terms of the first proviso to Section 30 of the Customs Act where Bill of Entry is filed in advance of the arrival of the conveyance, the applicable rate of duty would be such that was chargeable on the date the manifest of the conveyance is delivered, which in the present case was 16.07.1995. Therefore, he maintained that the filing of Bill of Entry before the cut-off date i.e. 30.06.1995 would not bring any benefit for the respondent company under SRO No. 484(I)/92. In support of this argument, the learned counsel for the appellant relied upon the case of Fauji Cement Company Limited Vs. Federation of Pakistan (2014 SCMR 994). He also relied upon the cases of Pakistan Telecommunication Corporation Vs. Federation of Pakistan (2011 PTD 2175) and Collector of Customs Vs. Ismail & Co (2015 SCMR 1383). 5. In rebuttal, Mr. Salman Akram Raja, learned counsel for the respondent company, argued that by definition an industrial plant comprises of equipments, machines and apparatus that are applied in an industrial process to produce a desired result and respondent company’s industrial process of cement manufacturing starts from the quarrying of the limestone. He explained that the Off-Highway dump trucks are meant for CIVIL APPEAL NOs. 1291-K/2005, 847/2009, 427-K/2009, 428-K/2009 5 transporting the quarried limestone to the place where it is further processed, thus being an integral part of industrial process entitled the respondent company to avail the benefit of exemption granted under SRO 484(I)/92 dated 14.05.1992. In support of his argument that even a moving vehicle can be described as part of a ‘plant’, Mr. Salman Akram Raja placed reliance upon the case of Collector of Customs Vs. Fauji Fertilizer Co. Ltd (PLD 2005 Supreme Court 577) and also on a judgment from English jurisdiction rendered way back in the year 1887 and reported as Yarmouth Vs. France (1887 LIR. 19 Q.B.D. 647). In this case, the plaintiff was an employee of a wharfinger. He brought an action against his employer under the Employers’ Liability Act, 1880 after being injured by the employer’s horse that pulled the trolley on which the plaintiff used to deliver consignments on the instructions of his employer. The plaintiff for his injury claimed compensation in the suit. The defendant resisted the action on the ground that neither the plaintiff was a ‘workman’ nor the horse a ‘plant’ within the meaning of the Employers’ Liability Act, 1880’ therefore, the claim was not maintainable. The Divisional Court, while affirming the decision of the Trial Court, held that the horse which drove the trolley was the most material part of the assignment of the plaintiff and hence can be described as ‘plant’. Mr. Salman Akram Raja maintained that if a horse can be described as a ‘plant’ then by analogy the moving vehicle Off- Highway dump trucks engaged in an industrial process can also be described as a ‘plant’ and the exemption under SRO 484(I)/92 can be sought on their import for use in a cement factory. CIVIL APPEAL NOs. 1291-K/2005, 847/2009, 427-K/2009, 428-K/2009 6 6. We have read the above referred judgment in Yarmouth supra case and also the dissenting view of one of the three judges and find ourselves to be in agreement with the reasoning given in the dissenting note in the above referred English judgment which stated that the term ‘plant’ is to be confined to fixtures and others unanimated chattels used in trade or business but nothing which is animate can be termed as a ‘plant’ as the living creatures can in no sense be considered as ‘plant’. The plant as is ordinarily defined means machines, apparatus and equipment that are utilized at various stages of an industrial process in order to produce some industrial product. Nothing that is animate, whether man or animal, can be defined as a ‘plant’ even though any machine, apparatus or equipment may not become operational without the physical labour of a man or an animal. Merely for the reason that in the 19th century a carriage could only be driven by a domesticated animal like a horse or a donkey does not make that animal part of a plant. If the description of a plant is also attributed to an animal then a man who pulls a cart would also be described as a material part of a plant as he does so by applying manual labour. The distinction between the plant and the worker or animal that operates it has to be maintained otherwise the workers of a factory would also be defined as ‘plant’. Even the land on which the ‘plant’ is placed and the building where it is housed are not regarded as ‘plant’ then how could anything which is animate could be regarded as ‘plant. CIVIL APPEAL NOs. 1291-K/2005, 847/2009, 427-K/2009, 428-K/2009 7 7. Having discussed these two cases, it is pertinent to mention here that the basis of respondent company’s claim for exemption under SRO 484(I)/92 dated 14.05.1992 was that as the Off-Highway dump trucks were imported for their use in the industrial process of a cement factory, therefore, the same be regarded as part of the plant and machinery of the cement factory. In order to make a determination to this effect, we shall firstly proceed to examine the function of an Off-Highway dump truck and then seek to resolve whether its use in the cement industry makes it part of the plant that is engaged in the industrial process of producing cement inspite of the fact that such trucks in their utilization remain mobile as against other machinery and equipment of the plant which, directly or indirectly remains fastened to the earth. 8. The layout plan of a cement factory determines what equipment, engineering and construction is required to complete the industrial process that is to be undertaken. Ordinarily, a cement factory is located where the main raw-material to produce cement such as limestone is found in abundance. So the industrial process of a cement factory starts from quarrying of the limestone. Where the layout of the cement factory is so designed that it starts its industrial process from extracting its raw materials from quarry then the same has to be hauled to the facility where the raw- materials are to be first crushed. The entire set of machines used in conjunction with other apparatus and electrical and mechanical equipments, required for undertaking and completing the CIVIL APPEAL NOs. 1291-K/2005, 847/2009, 427-K/2009, 428-K/2009 8 industrial process, starting right from quarrying till the finished product that is produced is to be regarded as part of the plant of the respondent company. Off-Highway dump trucks, also called Off-Road dump trucks, are specifically designed for use in difficult terrain where the activity of mining, quarrying and construction of big buildings is carried out. These Off-Highway dump trucks, on account of their specific utility, have low payload capacity as well as low speed in comparison with the ordinary dump trucks that we see every day on roads and highways. Other than such use, the Off-Highway dump truck cannot be economically used as an ordinary means of transportation of goods. 9. In cement industry Off-Highway trucks are used at the quarries where the predominant raw-material in the cement production ‘limestone’ is won from the quarry by either extraction or blasting following which it is hauled on Off-Highway dump trucks to the place where the second stage in the cement manufacturing i.e. crushing of the raw-material takes place. Thus there is direct nexus between the use of Off-Highway dump truck at the quarry of a cement manufacturing factory with its industrial process. This nexus brings the Off-High way dump truck within the definition of ‘plant’. When the industrial process of a cement factory starts with the quarrying activity of a cement factory, we see no reason why Off-Highway dump trucks’ utilization cannot be treated as part of the industrial process of a cement factory. Thus Off-Highway dump trucks cannot be excluded from being treated as part of the plant of a cement factory, where their utility forms CIVIL APPEAL NOs. 1291-K/2005, 847/2009, 427-K/2009, 428-K/2009 9 an integral function in the manufacturing of the cement. So irrespective of the fact that Off-Highway dump trucks required to be operated at the very first stage in the cement manufacturing activity i.e. quarrying of the raw materials, are mobile vehicles, nevertheless these trucks are utilized to further the industrial process without which the industrial process of a cement factory would get interrupted and hindered at the very initial stage. 10. It may not be out of place to mention here that extracting limestone and clay from the quarry can itself be a complete industrial process undertaken only to sell limestone in the market as its finished product. The customer of such enterprise could be a cement factory which is either not designed to start its industrial process from extracting limestone or for some reason the quarrying facility of a cement factory may have become dysfunctional and has to purchase limestone from elsewhere and transport it to its crushing facility. In such a situation the activity of transportation of raw-materials from the place of procurement to the place of crushing facility of a cement factory, would not make such activity part of cement factory’s industrial process as mere transportation of a product from one facility to another, where it is utilized as raw material, does not make the act of transportation part of the industrial process of either of the two enterprises. However this does not seem to be the case with the respondent company as since in the present case the quarrying of materials is undertaken by one and the same enterprise which after completion of the remaining stages involved in the manufacturing of cement CIVIL APPEAL NOs. 1291-K/2005, 847/2009, 427-K/2009, 428-K/2009 10 (crushing, blending, heating, cooling, clinkering and milling) ends with the portable cement being produced in bulk or bags for consumption. The respondent company in the present case seems to be so designed that its’ Off-Highway dump trucks involved in the industrial process are to be regarded as part of the ‘plant’ of the cement factory. We are therefore left with no other option other than to hold that the very use of Off-Highway dump trucks at the quarries make them part and parcel of the industrial process of a cement factory and thus such trucks fall within the definition of the respondent company’s cement plant. 11. The matter with regard to grant of exemption under SRO 484(I)/92 dated 14.05.1992 however does not end here. It is an admitted position that the respondent company opened the letter of credit on 27.2.1995 well within cut-off date mentioned in SRO 484(I)/92 whereas the consignment was delivered at Karachi port after the cut-off date. Learned counsel for the appellant had argued that in terms of the first proviso to Section 30 of the Customs Act where the Bill of Entry (now called Goods Declaration) is filed in advance of the arrival of the conveyance, the relevant date for the purposes of rate of duty would be when the manifest of the conveyance is delivered at the port of first entry and mere filing of Bill of Entry when the SRO 484(I)/92 was applicable was not sufficient as the goods had not arrived by the cut-off date of 30.06.1995. In support of this argument learned counsel for the appellant relied upon the case of Fauji Cement Company Limited Vs. Federation of Pakistan (2014 SCMR 994) wherein this Court CIVIL APPEAL NOs. 1291-K/2005, 847/2009, 427-K/2009, 428-K/2009 11 while dealing with the imports under the same SRO which is subject matter of these proceedings i.e. SRO No. 484(I)/92 held that date on which ‘Letter of Credit’ was established or steps were taken in respect of import of machinery are not relevant and it is the date of import which determines applicability of the customs duty. In response to this, learned counsel for the respondent company relied upon another Notification No. SRO No. 978(I)/95 dated 4.12.1995 which gives continuity to the benefit of exemption granted under SRO 484(I)/92 dated 14.05.1992 to a certain extent. This notification provides that where Letter of Credit for the import of plant and machinery, intended to be cleared under the notification No. SRO 484(I)/92, had already been opened prior to the cut-off date i.e. 30.6.1995 but the consignment was delivered at the port after the expiry of such cut-off date, then the benefit of exemption granted under Notification No. SRO 484(I)/92 can be availed. We are of the view that in terms of the decision of this Court in the case of Fauji Cement supra, the respondent company was not entitled to seek exemption granted under SRO 484(I)/92 in its entirety. However, the respondent company was entitled to exemption to a limited extent on the import of Off-Highway dump trucks by virtue of SRO No. 978(I)/95 which exempts duties and charges over and above 25% of the leviable customs duty and sales tax and no more. To such extent the impugned judgment stands modified. The customs authority shall be justified in recovering customs dues and Sales Tax on the imported Off-Highway dump trucks accordingly. CIVIL APPEAL NOs. 1291-K/2005, 847/2009, 427-K/2009, 428-K/2009 12 12. This appeal is disposed off in light of the discussion undertaken above. JUDGE JUDGE JUDGE Islamabad, the Announced on ______________ by Hon’ble Mr. Justice Faisal Arab Approved For Reporting Khurram

{'id': 'C.A.1291_2005.pdf', 'url': ''}

{'id': 'C.A.1291_2005.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, CJ MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL APPEAL NO. 130 OF 2021 (On appeal against the judgment dated 12.09.2019 passed by the Lahore High Court, Rawalpindi Bench in Writ Petition No. 2436/2019) Tasawar Hussain …Appellant VERSUS Deputy Commissioner District, Jhelum and others …Respondent(s) For the Appellant: Khawaja Muhammad Arif, ASC Syed Rifaqat Hussain Shah, AOR For the Respondent: Barrister Qasim Ali Chohan, Addl. P.G. Mirza Muzafar Baig, Chief Officer, M.C. Pind dadan Khan Date of Hearing: 08.06.2021 … JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this appeal by leave of the Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the appellant has called in question the judgment dated 12.09.2019 passed by the Lahore High Court, Rawalpindi Bench, whereby the writ petition filed by him was dismissed and the penalty of dismissal from service imposed upon him was maintained. 2. Briefly stated the facts of the case are that appellant was appointed as Chowkidar (BPS-1) in Municipal Committee, Pind Dadan Khan on 22.06.2002. He took leave from the department from 01.02.2013 to 31.01.2014. During his leave period, pursuant to registration of a criminal case bearing FIR No. 58 dated 10.02.2013 under Sections 302, 109, 34 PPC at Police Station Saddar Chakwal, the appellant absconded from the country and the leave period ended during his absconsion. However, he was arrested from abroad and ultimately, he was acquitted of the charge vide judgment dated Civil Appeal No. 130/2021 -: 2 :- 28.03.2017. The appellant had to join duty on 01.02.2014 but neither he applied for further leave nor informed his office. During his absence, inquiry proceedings were conducted against him. An Inquiry Officer was appointed on 10.03.2015 by the Tehsil Municipal Officer, Pind Dadan Khan and the appellant was given charge sheet vide letter dated 05.05.2015. The Inquiry Officer also issued publication of proclamation in this regard of the appellant in newspaper on 30.05.2015 and after inquiry proceedings vide order dated 17.06.2015 recommended to impose penalty of removal from service under Section 4(b)(v) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006. On 20.08.2015, he was further issued a notice to appear before the Tehsil Municipal Officer for personal hearing but he neither appeared nor submitted his reply. He was given another opportunity for personal hearing for 26.11.2015 but again he did not appear nor replied. Ultimately, the competent authority vide order dated 22.10.2015 imposed major penalty of dismissal from service upon the appellant from the date of his absence i.e. 01.02.2014. After his acquittal, he filed departmental appeal on 13.04.2017 against his dismissal order but the same stood dismissed vide order dated 10.08.2017. He, thereafter, filed representation before the Deputy Commissioner Jhelum on 09.09.2017 but it also met the same fate vide order dated 21.05.2019. The appellant challenged these orders before the Lahore High Court, Rawalpindi Bench by filing Writ Petition No. 2436/2019, which has been dismissed vide impugned judgment. Hence, this appeal with leave of the court. 3. Learned counsel for the appellant inter alia contended that no inquiry officer has been appointed nor any inquiry has been conducted by the department; that the department did not follow the proper procedure as warranted under law; that after acquittal of the appellant from the criminal case, it was mandatory for the department to reinstate him in service; that the inquiry officer had recommended ‘penalty of removal from service’ but the competent authority without assigning any reason, awarded penalty of dismissal from service to the appellant, which is against the intent of law. In support of his arguments, learned counsel relied on the cases of Secretary Government of Punjab Vs. Ikramullah (2013 SCMR 572) and Shibli Farooqui Vs. Federation of Pakistan (2009 SCMR 281). Civil Appeal No. 130/2021 -: 3 :- 4. On the other hand, learned Additional Advocate General has supported the impugned order. He mainly contended that the appellant was awarded major penalty of dismissal from service due to willful absence of 23 months without any leave and being a public servant he was bound to take prior leave or inform the department but he did not respond in the manner as required, therefore, the major penalty of dismissal from service is rightly imposed upon him. 5. We have heard learned counsel for the appellant and the learned Law Officer at some length and have perused the available record. 6. It is an admitted fact that the appellant remained absent from duty for a long period of 23 months without taking leave. The only defence put by him is that as a false case was registered against him, therefore, due to fear of illegal persecution he absconded from the country. However, nothing had estopped him to at-least inform the department but he neither applied for leave nor informed his office. During his absence, the inquiry proceedings started and ultimately resulted in his dismissal from service on 22.10.2015. It is on record that the appellant was arrested through inter-pole on 25.08.2016 whereas he was granted bail on 01.10.2016 by the court of competent jurisdiction. Till that time, the inquiry proceedings had already completed. The Inquiry Officer also issued publication qua absence of the appellant in newspaper and after fulfilling all requirements of inquiry proceedings recommended that the penalty of removal from service under Section 4(b)(v) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 be imposed upon the appellant. The competent authority vide order dated 22.10.2015 imposed major penalty of dismissal from service upon the appellant from the date of his absence i.e. 01.02.2014 under Section 4(b)(vi) of the PEEDA Act, 2006. The anxiety of the learned counsel that the department has not followed the legal requirements before awarding the penalty is without any legal justification. All codal formalities were duly fulfilled. Otherwise, it is now well settled that where the absence from duty is admitted, there is no need to hold regular inquiry. This aspect has been taken care of by this Court in a recent judgment reported as National Bank of Pakistan Vs. Zahoor Ahmed (2021 SCMR 144) wherein while relying on an earlier judgment of this Court, it has been held as under:- Civil Appeal No. 130/2021 -: 4 :- “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) 7. The crux of the arguments advanced by the learned counsel for the appellant mainly relates to the fact that the Inquiry Officer had made recommendations contrary to the penalty inflicted by the competent authority. To carefully consider the aforesaid legal contention, a deeper analysis is required to adjudicate it according to the dictates of justice. In ordinary circumstances, it is now settled that the competent authority is not under obligation to act according to the recommendations made by the Inquiry Officer, rather it can inflict penalty as it deems appropriate according to the facts and circumstances surfaced on the record. There is no denial to this fact that the Inquiry Officer had made recommendation of removal from service in terms of Section 4(b)(v) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 but the competent authority has acted contrary to the recommendation while inflicting penalty of dismissal from service under Section 4(b)(vi) of the above-said PEEDA Act. There is no second cavil to this proposition that in both the eventualities, the employee has to relinquish the job but to ascertain the gravity of the punishment, it seems appropriate to know the consequence of both the penalties. The penalty of removal from service does not debar the employee to seek re-employment and it is not considered as a continuous stigma but the penalty of dismissal from service stigmatizes the employee on permanent basis, therefore, in all fairness the penalty of dismissal from service is placed at a higher pedestal as far as gravity of the punishment is concerned. It is established principle of law that in pursuance of the dictates of natural justice and fairness, while enhancing the penalty to a severe degree, assigning of the reasons seems to be more judicious, equitable and it further glorifies the judicial system. Hence, we are in agreement with the argument of learned counsel for the appellant that while enhancing the penalty, the competent authority is under legal obligation to assign judiciable reasoning. As far as the Civil Appeal No. 130/2021 -: 5 :- judgments of this Court relied upon by the learned counsel for the appellant are concerned, they further fortify the view expressed by us, therefore, the present appeal to this extent is justified. As a consequence, the enhancement of the penalty of removal from service into dismissal from service is declared not sustainable in the eyes of law and coupled with appellant’s length of service and the fact that he has already suffered hardship, we deem it appropriate to modify the penalty of dismissal from service into removal from service. 8. For what has been discussed above, this appeal is partly allowed and the impugned judgment is maintained with the modification of punishment as referred in the preceding paragraph. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 8th of June, 2021 Approved For Reporting Khurram

{'id': 'C.A.130_2021.pdf', 'url': ''}

{'id': 'C.A.130_2021.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE MUSHIR ALAM MR. JUSTICE MAQBOOL BAQAR CIVIL APPEAL NO.1313 OF 2014 (Against the judgment dated 15.5.2014 of the Peshawar High Court, Peshawar passed in W.P.No.1882-P/2013) Muhammad Zaman etc. …Appellant(s) VERSUS Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad etc. …Respondent(s) For the appellant(s): Mr. Abdul Rahim Bhatti, ASC Mr. Abdul Rehman Khan, ASC For respondent No.1: Syed Nayab Hassan Gardezi, Standing Counsel Mr. M. S. Khattak, AOR Abid Hussain Channa, S.O. Finance For respondents 2 to 4: Kh. Muhammad Farooq, Sr. ASC Raja Abdul Ghafoor, AOR Date of hearing: 14.12.2016 … JUDGMENT MIAN SAQIB NISAR, J:- This appeal with the leave of this Court is to decide whether the State Bank of Pakistan Officers (Pension-cum-Gratuity) Regulations, 1980 (the Regulations) are statutory or non-statutory after the amendment whereby the phrase “subject to the approval of the Federal Government” was omitted. 2. The brief facts of the case are that the appellants are retired employees of the State Bank of Pakistan (SBP). Following the direction of the Federal Government issued on 30.11.1977, SBP introduced a pension scheme for its employees vide letter dated Civil Appeal No.1313 of 2014 -: 2 :- 10.1.1978. Thereafter, the Central Board of Directors of SBP (Board), in exercise of its powers under Section 54 of the State Bank of Pakistan Act, 1956 (the Act), framed the Regulations with the approval of the Federal Government. The appellants, being aggrieved of SBP’s failure to grant them periodical increases in pension in line with those granted by the Federal Government since 1997, filed representations before SBP but to no avail. The petitioners then filed a constitutional petition before the learned High Court which (petition) was dismissed vide impugned judgment. Leave was granted on 3.10.2014 for the reasons recorded in the order dated 2.9.2014, the which latter order reads as under:- “The petitioners before us are retired employees of the State Bank of Pakistan. They claim to be entitled to the same retirement benefits, which are applicable to Federal Government employees of similar nature. The petitioners, however, have been non-suited by the High Court vide impugned judgment dated 15.05.2014. It has been observed by the High Court as under:- “Initially, the Central Board had been vested with powers to make regulations consistent with the Act to provide for all matters which are necessary and for the purpose of giving effect to the provision of the Act but subject to the approval of the Federal Government by virtue of section 54 of the Act. In compliance therewith, the SBP Officers (Pension- cum-Gratuity) Regulations 1980 were framed in exercise of power conferred by section 54 of the ibid Act, by the Civil Appeal No.1313 of 2014 -: 3 :- Central Board of Directors of SBP, with the approval of the Federal Government. In view of this statutory backing and support, the said Rules were statutory which were in vogue since its coming into force till amendment effected in section 54 of the Act. The phrase “subject to the approval of the Federal Government” was omitted from Section 54 of the Act, vide Act-ii of 1994. After the omission of the said phrase, the absolute power has been vested win the Central Board of the Bank to make Regulations for giving effect to the provisions of the Act without any approval of the Government.” 2. Learned counsel for the petitioners has argued that in view of the law laid down by this Court in the cases of Oil and Gase (sic) Development Company v. Nazar Hussain (2010 SCMR 1060) and Masood Ahmed Bhatti v. Federation of Pakistan (2002 SCMR 152) the reasoning of the High Court is erroneous. 3. Let notice issue to the respondents for a date after 30 days.” 3. Learned counsel for the appellant argued that in the light of the judgments reported as Muhammad Tariq Badrah29 and another Vs. National Bank of Pakistan and others (2013 SCMR 314), Shafique Ahmed Khan and others Vs. NESCOM through Chairman, Islamabad and others (PLD 2016 SC 377), Pakistan Defence Officers’ Housing Authority and others Vs. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707), Zarai Taraqiati Civil Appeal No.1313 of 2014 -: 4 :- Bank Limited and others Vs. Said Rehman and others (2013 SCMR 642) and Pakistan Telecommunication Employees Trust (PTET) through M. D., Islamabad and others Vs. Muhammad Arif and others (2015 SCMR 1472) the Regulations were statutory and thus the learned High Court had wrongly dismissed the appellants’ writ petition. In this context he also relied upon Section 6 of the General Clauses Act, 1897 (the General Clauses Act) and Article 264(c) of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) to argue that omission of the phrase “subject to the approval of the Federal Government” did not render the earlier statutory Regulations non-statutory. He further submitted that the learned High Court could not non-suit the appellants on the ground of laches as the denial of pension is a recurring cause of action. In this regard he relied upon the judgments reported as S. A. Jameel Vs. Secretary to the Government of the Punjab, Cooperative Department and others (2005 SCMR 126), Umar Baz Khan through L.Hrs. Vs. Syed Jehanzeb and others (PLD 2013 SC 268), Masooda Begum through Legal Heirs Vs. Government of Punjab through Secretary Forest, Lahore and 9 others (PLD 2003 SC 90), State Bank of Pakistan and others Vs. Mst. Mumtaz Sultana and others (2010 SCMR 421), Ali Muhammad Vs. Commissioner Afghan Refugees, N.W.F.P. and another (1995 SCMR 1675) and Chief Executive Progressive Paper Limited/The Chairman National Press Trust, Islamabad Vs. Sh. Abdul Majeed and another (2005 PLC(CS) 1439). 4. Learned counsel for the respondent stated at the very outset that to follow the pension rates of the Federal Government is not a part of the Act or the service/pension rules/regulations Civil Appeal No.1313 of 2014 -: 5 :- framed pursuant thereto and there is no obligation on SBP to follow and abide by the rules of increase given by the Federal Government to its employees. While referring to the circular dated 30.11.1977, he stated that initially there was a Banking Council constituted under Section 9 of the Banks (Nationalization) Act, 1974 which controlled the banks on behalf of the Federal Government. The Banks (Nationalization) (Amendment) Ordinance, 1996 brought about a sea change which eventually matured into the Banks (Nationalization) (Amendment) Act, 1997 (the Amendment Act) pursuant to which the banks were made almost completely autonomous: the Banking Council was abolished and the boards of directors of the banks were made independent. From 1977 to 1997 though SBP abided by the directions of the Federal Government but every circular received from the Federal Government was either republished or adopted through a separate circular issued by the Board. The Federal Government’s directives did not ipso facto become effective unless given effect through a board resolution. Further, that after the Amendment Act, SBP devised its own wage structure which it announced on 1.6.1999. Learned counsel put forward the following propositions:- i. After the amendment in Section 54 of the Act, the new Regulations could be framed without the sanction or permission of the Federal Government; ii. The instructive direction given by the Federal Government in 1977 that in future all increases in wages or pension in the case of civil servants or Federal Government employees would apply to SBP employees does not enjoy the status of a rule/regulation having a binding effect because the regulation-making power under Section 54 of the Act Civil Appeal No.1313 of 2014 -: 6 :- vests exclusively with the Board. Therefore the provisions of Section 54 would be relevant for determining whether any change brought about by the Regulations could be examined in light of the directive issue by the Federal Government in 1977; iii. With regard to determination of quantum, learned counsel relied upon Akram Ul Haq Alvi Vs. Joint Secretary (R-II) Government of Pakistan, Finance Division, Islamabad and others (2012 SCMR 106) to argue that SBP was vested with the power to fix the amount of, or increase in pension; iv. Regarding the appellants’ claim that SBP ceased to increase their pension in line with the Federal Government since 2003, whereas the writ petition was filed in 2014 – he stated that it is not a recurring cause of action – when they stood retired, pension or commuted portion of their pension was paid to them immediately in 2004, 2005 and 2006 and that was the time the cause of action accrued because they knew precisely the rate they were being paid; v. Notwithstanding the change in law, the Regulations are statutory, as according to the Pakistan Defence Officers’ Housing Authority’s case, the approval of the Federal Government has ceased to be a relevant factor in order to determine whether rules/regulations are statutory or non-statutory. 5. Heard. In order to answer the proposition identified in the opening paragraph of this opinion, we find it expedient to first discuss the object and purpose of SBP. After the creation of Pakistan in 1947, SBP was created as the central bank of Pakistan to take over the management of the currency from the Reserve Bank of Indian (Section 3(1) of the Act). The Preamble of the Act postulates the reasons for the constitution of SBP as the regulator Civil Appeal No.1313 of 2014 -: 7 :- of the monetary and credit system of Pakistan and to foster its growth in the best national interest with a view to securing monetary stability and fuller utilisation of the country’s productive resources. The business and functions of SBP have been provided for in detail in Chapter IV of the Act (Sections 17 to 40). Broadly speaking, SBP’s functions include, amongst other things, issuance of notes, regulation and supervision of the financial system, to act as the Government’s bank, to conduct the monetary policy of Pakistan, management of public debt and foreign exchange, advising the Government on policy matters, liaising with international financial institutions, development of a financial framework for Pakistan and institutionalization of savings and investment. SBP is a body corporate having perpetual succession and a common seal and the ability to sue and be sued [Section 3(2) of the Act]. The Board has been entrusted with the general superintendence and direction of the affairs and business of SBP and its (Board’s) functions and responsibilities have been provided in detail in Section 9A of the Act. The Board comprises of a Governor (Chairman of the Board), the Secretary, Finance Division, Government of Pakistan and eight directors (at least one from each Province) who are eminent professionals from the field of economics, finance, banking and accountancy (Section 9 of the Act). There is also a Board for the co-ordination of fiscal, monetary and exchange-rate policies (See Section 9B of the Act) and the Monetary Policy Committee (See Sections 9D and 9E of the Act). Civil Appeal No.1313 of 2014 -: 8 :- 6. Like many other statutory bodies, SBP has also been given the power to frame regulations. In this regard Section 54 of the Act is relevant which reads as follows:- “54. Powers of the Central Board to make regulations. (1) The Central Board may make regulations consistent with this Act to provide for all matters for which provision is necessary or convenient for the purpose of giving effect to the provisions of this Act: Provided that the terms and conditions of service of Governor and Deputy Governor shall be determined by the Federal Government. (2) In particular and without prejudice to the generality of the foregoing provision, such regulations may provide for all or any of the following matters, namely:- : (j) recruitment of officers and servants of the Bank including the terms and conditions of their service, constitution of superannuation, beneficial and other funds, with or without bank’s contribution, for the officers and servants of the Bank; their welfare; providing amenities, medical facilities, grant of loans and advances, their betterment and uplift; : (3) ……………………………………………………………” According to Section 54(1) of the Act, the Board is empowered to make regulations consistent with the Act to provide for all matters for which provision is necessary or convenient for the purpose of Civil Appeal No.1313 of 2014 -: 9 :- giving effect to the provisions of the Act. It is pertinent to mention that previously SBP could only make regulations with the approval of the Federal Government, however by virtue of Act II of 1994, the words “subject to the approval of the Federal Government” were omitted. We are of the view that this omission is significant, conferring greater autonomy on the Board as the Federal Government was removed from the regulation-making process, and full authority came to vest in the Board to make such regulations. Indeed this was the view of a two-member bench of this Court in the judgment reported as Chief Manager, State Bank of Pakistan, Lahore and another Vs. Muhammad Shafi (2010 SCMR 1994) wherein, while considering whether the State Bank of Pakistan Staff Regulations, 1999 were statutory or non-statutory, it was held as follows:- “7. The words "subject to the approval of the Federal Government" were omitted vide Act II of 1994. The regulations were framed under section 56 in the year, 1999 as is evident from the source on the basis of which the said regulations were framed which is to the following effect:- "In exercise of the powers conferred by section 54 of the State Bank of Pakistan Act, 1956 (XXXIII of 1956) the Central Board of Directors, hereby makes the following Regulations, to define the conditions of service of the employees of the Bank." 8. The omission of the aforesaid words subject to the approval from section 54 is meaningful. Rules framed by the Central Board of Directors which does not require approval of the Government, therefore aforesaid regulations may be termed as internal Civil Appeal No.1313 of 2014 -: 10 :- instructions or domestic rules/regulations having no status of statutory rules/regulations as law laid down by this Court in various pronouncements…” We are of the opinion that the above view applies to and is correct vis-à-vis the Regulations in the instant matter as well. Furthermore, as matters stand (since the omission by Act II of 1994), and as mentioned above, the regulation-making power lies solely in the hands of the Board with no intervention or approval of the Federal Government, and this reflects the intention of the Legislature. In this context, as highlighted above, even the structure of the Board as provided for in the Act renders it autonomous, with the Members, save for the Secretary, Finance Division, Government of Pakistan, being private individuals, independent from the Federal Government. In fact, where the legislature wanted the intervention of the Federal Government, it has specifically provided for the same, and in this regard the proviso to Section 54(1) of the Act is relevant which states that “the terms and conditions of service of Governor and Deputy Governor shall be determined by the Federal Government”, clearly suggesting that the Legislature’s intention was to exclusively clothe SBP with the power to frame regulations to carry out the objects and purpose of the Act. Furthermore, Section 46B(2) of the Act [inserted by the State Bank of Pakistan (Amendment) Act, 1997 (Act No.XIII of 1997)], provides that “the Bank, the members of the Board or the staff of the Bank, shall not take instructions from any other person or entity, including the government or quasi-government entities. The autonomy of the Bank shall be respected at all times and no person or entity shall seek to influence the members of the Board and Monetary Policy Committee or the staff of the Bank in the performances of their functions or interfere in the activities of the Bank.” It may Civil Appeal No.1313 of 2014 -: 11 :- be added that to give maximum autonomy to SBP, Section 52(1) of the Act which empowered the Federal Government to supersede the Board and entrust the general superintendence and direction of the affairs of SBP to such agency as it (Federal Government) may determine was omitted by the State Bank of Pakistan (Amendment) Act, 2012 (Act No.IX of 2012 dated 13.3.2012). All the above aspects point towards the growing autonomy of SBP. 7. According to the judgment delivered in Civil Appeal No.654/2010 etc. titled Shafique Ahmed Khan, etc. Vs. NESCOM through its Chairman, Islamabad, etc. the test of whether rules/regulations are statutory or otherwise is not solely whether their framing requires the approval of the Federal Government or not, rather it is the nature and efficacy of such rules/regulations. It has to be seen whether the rules/regulations in question deal with instructions for internal control or management, or they are broader than and are complementary to the parent statute in matters of crucial importance. The former are non-statutory whereas the latter are statutory. In the case before us, the Regulations were made pursuant to Section 54(1) of the Act and Section 54(2) thereof goes on to provide the particular matters for which the Board can frame regulations [while saving the generality of the power under Section 54(1) of the Act]. Out of all the matters listed in Section 54(2) of the Act, clause (j) is the most relevant which pertains to the “recruitment of officers and servants of the Bank including the terms and conditions of their service, constitution of superannuation, beneficial and other funds, with or without bank’s contribution, for the officers and servants of the Bank; their welfare; providing amenities, medical facilities, grant of loans and advances, their betterment and uplift”. A perusal of the Regulations Civil Appeal No.1313 of 2014 -: 12 :- suggests that they relate to pension and gratuity matters of the employees of SBP and therefore it can be said that the ambit of such Regulations is not broader but narrower than the parent statute, i.e. the Act. Thus the conclusion of the above discussion is that the Regulations are basically instructions for the internal control or management of SBP and are therefore non-statutory. Hence the appellants could not invoke the constitutional jurisdiction of the learned High Court which was correct in dismissing their writ petition. 8. Since it has been held above that the Regulations are non-statutory, therefore we do not find it necessary to dilate upon the point of laches. 9. In light of the above, this appeal is dismissed. JUDGE JUDGE JUDGE Announced in open Court on 21.2.2017 at Islamabad Approved For Reporting Ghulam Raza/*

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{'id': 'C.A.1313_2014.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB CIVIL APPEAL NO. 1338 OF 2007 (On appeal against the judgment dated 14.03.2006 passed by the High Court of Sindh, Karachi in ITR No. 03/1994) Commissioner of Income Tax, Companies Zone, Islamabad … Appellant VERSUS M/s Pak Saudi Fertilizer Ltd …Respondent For the Appellant: Dr. Farhat Zafar, ASC Raja Abdul Ghafoor, AOR For the Respondent: Mr. Iqbal Salman Pasha, ASC Date of Hearing: 20.02.2017 JUDGMENT FAISAL ARAB, J.- In the assessment years 1987-88, 1988-89 and 1989-90, the respondent invested a sum of Rs.14,99,99,762/- in the purchase of National Funds Bonds. The interest income on such Bonds was exempt from tax under the provisions of Clause 170 to the Second Schedule to Part I of the erstwhile Income Tax Ordinance, 1979. In these assessment years, the respondent on such investment derived interest income to the tune of rupees 19.6 million. Considering the fact that the respondent on the one hand was claiming exemption on interest income and on the other hand interest expense was being incurred on loans borrowed from Asian Development Bank and Government of Saudi Arabia, the Income Tax Officer drew an inference that borrowed monies were diverted to purchase the National Funds Bonds to derive tax free income. The Income Tax Officer thus disallowed the interest accrued on the loans in proportion to the interest income derived from the Bonds to the extent of rupees 12.13 million. Civil Appeal No. 1338/2007 2 2. The decision of the Income Tax Officer was challenged by the respondent upto the stage of Income Tax Tribunal but without success. The respondent then filed Reference in the High Court of Sindh, which framed the question “whether on the facts and in the circumstances of the case the learned Income Tax Appellate Tribunal was justified in confirming the disallowance of proportionate interest”. This question was answered in the negative against the department and in favour of the respondent. After taking into consideration the plea of the respondent that the loans that were obtained by the respondent from Saudi Arabian Government as well as from the Asian Development Bank were utilized in the purchase of fixed assets and the investment in the National Funds Bonds was made from the capital and unappropriated profits available with the respondent, the learned High Court held that the Tribunal’s findings were based merely on assumptions and conjectures as it failed to examine whether the Bonds were in-fact purchased from the borrowed monies or not. Aggrieved by such decision, the appellant filed the present appeal with the leave of this Court. 3. Learned counsel for the appellant argued that as a huge loan amount was outstanding against the respondent, the investment made in the National Funds Bonds for deriving tax free income was not justified for the reason that on the one hand the interest expense was being claimed on the borrowed monies and on the other hand tax free income was being derived by investing the very same amount in the Bonds, thereby taking undue advantage. 4. In rebuttal, learned counsel for the respondent submitted that from the statement of accounts of the respondent relating to the tax years in question it was evident that long term loans were obtained, which were utilized in the purchase of capital assets for setting up fertilizer plant and the investment that was made in National Funds Bonds was out of respondents' own capital and unappropriated profits, which had no nexus with the loan amount and this aspect was not considered at any stage upto Civil Appeal No. 1338/2007 3 the Income Tax Tribunal and was only taken into account by the High Court. 5. It is an admitted position that the interest income on the investment made in the National Funds Bonds was exempt from tax under Clause 170 to the Second Schedule to the Part I of the Income Tax Ordinance. The appellant’s counsel failed to point out that there was any restriction under the law that would have disentitled the respondent from claiming exemption on the interest income in case there were loans standing against it. A perusal of the copies of the statement of accounts filed by the respondent, it is quite evident that long term loans were obtained by the respondent prior to the purchase of the Bonds which were to be discharged with interest over a long period of time. Hence, independent of the financial obligation against the long term loans, the respondent made investment in the National Funds Bonds with its own funds generated from its business. The interest income derived thereon was admittedly exempt under the law and had no co-relation whatsoever with the loans. Irrespective of any co- relation between the two, no provision of law was shown to us to establish that mere existence of financial obligation in the form of loans would have disentitled the respondent from claiming exemption granted under Clause 170 to Second Schedule to Part I of the defunct Income Tax Ordinance, 1979. 6. We, therefore, find no justification to reverse the findings arrived at by learned High Court of Sindh. This appeal is, therefore, dismissed. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 20thof February, 2017 Approved For Reporting Khurram

{'id': 'C.A.1338_2007.pdf', 'url': ''}

{'id': 'C.A.1338_2007.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN ( Appellate Jurisdiction ) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, HCJ MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE IQBAL HAMEEDUR RAHMAN MR. JUSTICE KHILJI ARIF HUSSAIN CIVIL APPEAL NO.134-P OF 2013 (On appeal against the judgment dated 24-03-2011 passed by the Peshawar High Court, Peshawar, in Review Petition No.103/2009 in WP. No.59/2009) Govt. of KPK thr. Secy. Agriculture and others Vs. Adnanullah CIVIL APPEAL NO.135-P OF 2013 (On appeal against the judgment dated 22-09-2011 passed by the Peshawar High Court, Peshawar, in Writ Petition No.2170/2011) Chief Secy. Govt. of KPK & others Vs. Amir Hussain and others CIVIL APPEAL NO.136-P OF 2013 (On appeal against the judgment dated 07-03-2012 passed by the Peshawar High Court, Peshawar, in Writ Petition No.1897/2011) Govt. of KPK and others Vs. Muhammad Younas and others CIVIL APPEAL NO.137-P OF 2013 (On appeal against the judgment dated 13-03-2012 passed by the Peshawar High Court, Abbottabad Bench, in Writ Petition No.200-A/2012) Govt. of KPK and others Vs. Attaullah Khan and others CIVIL APPEAL NO.138-P OF 2013 (On appeal against the judgment dated 20-06-2012 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat in W.P. No.189-M/2012) Govt. of KPK thr. Secy. Agriculture Livestock Peshawar and others Vs. Muhammad Ayub Khan CIVIL APPEAL NO.52-P OF 2015 (On appeal against the judgment dated 5-12-2012 passed by the Peshawar High Court, Peshawar in Writ Petition No.3087/2011) Govt. of KPK thr. Chief Secretary and others Vs. Qalbe Abbas and another CIVIL APPEAL NO.1-P/2013 (On appeal against the judgment dated 10-05-2012 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat in Writ Petition No.2474/2011) District Officer Community Development Department (Social Welfare) and others Vs. Ghani Rehman and others CIVIL APPEAL NO.133-P OF 2013 (On appeal against the judgment dated 17-05-2012 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat, in Writ Petition No.2001/2009) Govt. of KPK thr. Secretary Vs. Iftikhar Hussain and others CAs.134-P/2013 etc 2 Livestock and others CIVIL APPEAL NO.113-P OF 2013 (On appeal against the judgment dated 17-05-2012 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza) Swat, in Writ Petition No.2380/2009) Govt. of KPK thr. Secretary I.T, Peshawar and others Vs. Muhammad Azhar and others CIVIL APPEAL NO.231 OF 2015 (On appeal against the judgment dated 24-04-2014 passed by the Peshawar High Court, D.I.Khan Bench, in Writ Petition No.37-D/2013) Govt. of KPK thr. Secy. Agriculture, Livestock, Peshawar and another Vs. Safdar Zaman and others CIVIL APPEAL NO.232 OF 2015 (On appeal against the judgment dated 24-04-2014 passed by the Peshawar High Court, D.I.Khan Bench, in Writ Petition No.97-D/2013) Govt. of KPK thr. Secy. Agriculture, Livestock, Peshawar and another Vs. Innayatullah and others CIVIL PETITION NO.600-P OF 2013 (On appeal against the judgment dated 06-06-2012 passed by the Peshawar High Court, Peshawar, in Writ Petition No.1818/2011) Govt. of KPK thr. Chief Secy. and others Vs. Noman Adil and others CIVIL PETITION NO.496-P OF 2014 (On appeal against the judgment dated 26-06-2014 passed by the Peshawar High Court, Peshawar, in Writ Petition No.1730-P/2014) Govt. of KPK thr. Chief Secretary Peshawar and others Vs. Muhammad Nadeem Jan and others CIVIL PETITION NO.34-P OF 2015 (On appeal against the judgment dated 23-09-2014 passed by the Peshawar High Court, Peshawar, in Writ Petition No.141-P/2014) Dean, Pakistan Institute of Community Ophthalmology (PICO), HMC and another Vs. Muhammad Imran and others CIVIL PETITION NO.526-P OF 2013 (On appeal against the judgment dated 12.3.2013 passed by the Peshawar High Court Peshawar, in Writ Petition No.376-P/12) Govt. of KPK through Chief Secretary Peshawar and others Vs. Mst. Safia CIVIL PETITION NO.527-P OF 2013 (On appeal against the judgment dated 12.3.2013 passed by the Peshawar High Court Peshawar, in Writ Petition No.377-P/2012) Govt. of KPK through Chief Secy. Peshawar and others Vs. Mst. Rehab Khattak CIVIL PETITION NO.528-P OF 2013 (On appeal against the judgment dated 12-03-2013 passed by the Peshawar High Court Peshawar, in Writ Petition No.378-P/2012) Govt. of KPK through Chief Secy. Peshawar and others Vs. Faisal Khan CIVIL PETITION NO.28-P OF 2014 (On appeal against the judgment dated 19-09-2013 passed by the Peshawar CAs.134-P/2013 etc 3 High Court, Mingora Bench (Dar-ul-Qaza) Swat, in Writ Petition No.4335-P/2010) Govt. of KPK through Chief Secy. Peshawar and others Vs. Rahimullah and others CIVIL PETITION NO.214-P OF 2014 (On appeal against the judgment dated 30-01-2014 passed by the Peshawar High Court Peshawar, in Writ Petition No.2131-P/2013) Govt. of KPK through Chief Secy. Peshawar and others Vs. Mst. Fauzia Aziz CIVIL PETITION NO.621-P OF 2015 (On appeal against the judgment dated 08-10-2015 passed by the Peshawar High Court, Abbottabad Bench, in Writ Petition No.55-A/2015) Govt. of KPK through Chief Secy. Peshawar and others Vs. Mst. Malika Hijab Chishti CIVIL PETITION NO.368-P OF 2014 (On appeal against the judgment dated 01-04-2014 passed by the Peshawar High Court Peshawar, in Writ Petition No.351-P/2013) Govt. of KPK through Chief Secy. Peshawar and others Vs. Imtiaz Khan CIVIL PETITION NO.369-P OF 2014 (On appeal against the judgment dated 01-04-2014 passed by the Peshawar High Court Peshawar, in Writ Petition No.352-P/2013) Govt. of KPK through Chief Secy. Peshawar and others Vs. Waqar Ahmed CIVIL PETITION NO.370-P OF 2014 (On appeal against the judgment dated 01-04-2014 passed by the Peshawar High Court Peshawar, in Writ Petition No.353-P/2013) Govt. of KPK through Chief Secy. Peshawar and others Vs. Mst. Nafeesa Bibi CIVIL PETITION NO.371-P OF 2014 (On appeal against the judgment dated 01-04-2014 passed by the Peshawar High Court Peshawar, in Writ Petition No.2454-P/2013) Govt. of KPK through Chief Secy. Peshawar and others Vs. Mst. Naima CIVIL PETITION NO.619-P OF 2014 (On appeal against the judgment dated 18-09-2014 passed by the Peshawar High Court Peshawar, in Writ Petition No.2428-P/2013) Govt. of KPK through Chief Secy. Peshawar and others Vs. Muhammad Azam and others CA.134-P/2013 For the appellant(s) : Mr. Waqar Ahmed Khan, Addl. AG KPK Syed Masood Shah, SO Litigation. Hafiz Attaul Memeen, SO. Litigation (Fin) Muhammad Khalid, AD (Litigation) Abdul Hadi, SO (Litigation) For the Respondent(s) : Mr. Imtiaz Ali, ASC (Res. No.186, 188, 191) : Mr. Ghulam Nabi Khan, ASC (CMA.496-P/13) : Mr. Ayub Khan, ASC CAs.134-P/2013 etc 4 CA.135-P/2013 For the appellant(s) : Mr. Waqar Ahmed Khan, Addl. AG KPK For the Respondent(s) : Hafiz S. A. Rehman, Sr. ASC Mr. Imtiaz Ali, ASC CA.136-P/2013 For the appellant(s) : Mr. Waqar Ahmed Khan, Addl. AG KPK For the Respondent(s) : Hafiz S. A. Rehman, Sr. ASC Mr. Imtiaz Ali, ASC CA.137-P/2013 For the appellant(s) : Mr. Waqar Ahmed Khan, Addl. AG KPK For Respondents (2 to 6) : Mr. Ijaz Anwar, ASC CA.138-P/2013 For the appellant(s) : Mr. Waqar Ahmed Khan, Addl. AG KPK For the Respondent(s) : Not represented. CA.52-P/2013 For the appellant(s) : Mr. Waqar Ahmed Khan, Addl. AG KPK For Respondent No.1 : In person (Absent) For Respondent No.2 : Not represented. CA.1-P/2013 For the appellant(s) : Mr. Waqar Ahmed Khan, Addl. AG KPK For Respondents (1-4, 7, 8, & 10-13) : Mr. Ghulam Nabi Khan, ASC Mr. Khushdil Khan, ASC CA.133-P/2013 For the appellant(s) : Mr. Waqar Ahmed Khan, Addl. AG KPK For Respondents (1-3, 5 & 7) : Mr. Ghulam Nabi Khan, ASC For respondents (4,8,9 & 10) : Not represented. CA.113-P/2013 For the appellant(s) : Mr. Waqar Ahmed Khan, Addl. AG KPK For the Respondent(s) : Ghulam Nabi Khan, ASC CA.231-P/2015 For the appellant(s) : Mr. Waqar Ahmed Khan, Addl. AG KPK For Respondents (1-3) : Mr. Shoaib Shaheen, ASC CAs.134-P/2013 etc 5 CA.232-P/2015 For the appellant(s) : Mr. Waqar Ahmed Khan, Addl. AG KPK For Respondent No.1 : Mr. Shoaib Shaheen, ASC CP.600-P/2014 For the Petitioner(s) : Mr. Waqar Ahmed Khan, Addl. AG KPK For the Respondent(s) : Mst. Sadia Rehim (in person) CP.496-P/2014 For the Petitioner(s) : Mr. Waqar Ahmed Khan, Addl. AG KPK Noor Afzal, Director, Population Welfare Department. For the Respondent(s) : Mr. Khushdil Khan, ASC CP.34-P/2014 For the Petitioner(s) : Mr. Shakeel Ahmed, ASC For the Respondent(s) : Syed Rifaqat Hussain Shah, AOR CPs.526 to 528-P/2013 For the Petitioner(s) : Mr. Waqar Ahmed Khan, Addl. AG KPK For the Respondent(s) : Mr. Ijaz Anwar, ASC CP.28-P/2014 For the Petitioner(s) : Mr. Waqar Ahmed Khan, Addl. AG KPK For the Respondent(s) : Mr. Ghulam Nabi Khan, ASC Mr. Khushdil Khan, ASC CPs.214-P/2014, 368- 371-P/2014 and 619- P/2014 & 621-P/2015, For the Petitioner(s) : Mr. Waqar Ahmed Khan, Addl. AG KPK For the Respondent(s) : Not represented. Date of hearing : 24-02-2016 JUDGMENT AMIR HANI MUSLIM, J.- Through this common judgment, we intend to decide the titled Appeals/Petitions, as common questions of law and facts are involved therein. CAs.134-P/2013 etc 6 CA.134-P/2013 On Farm Water Management Project, KPK. 2. On 27.10.2004, various posts in the “On Farm Water Management Project” were advertised. In response to the advertisement, the Respondent, Adnanullah, applied for the post of Accountant (BPS-11) for which he was selected and appointed for with effect from 31.12.2004. This appointment was initially for a period of one year and later was consistently extended from time to time on recommendation of the Petitioner. In the year 2006, a proposal was moved for creation of 302 regular vacancies to accommodate the contract employees working in different Projects. The Chief Minister KPK approved the proposal of 275 regular posts for this purpose with effect from 1.7.2007. During the interregnum, the Government of NWFP (now KPK) promulgated Amendment Act IX of 2009, thereby amending Section 19(2) of the NWFP Civil Servants Act, 1973 and NWFP Employees (Regularization of Services) Act, 2009. However, the newly created regular posts did not include the Respondent’s post. Feeling aggrieved, he filed a Writ Petition which was allowed (on the conceding statement of Addl. Advocate General) with the direction that if the Respondent was eligible, his services should be regularized, subject to verification of his domicile. The Review Petition filed by the Govt. of KPK was dismissed being time barred. Thereafter, leave was granted in the Petition filed by the Government of KPK before this Court. CA.No.135-P/2013 & Civil Petition No.600-P of 2013 On Farm Water Management Project, KPK 3. On 23.06.2004, the Secretary, Agriculture, got published an advertisement in the press, inviting Applications for filling up the posts of Water Management Officers (Engineering) and Water Management CAs.134-P/2013 etc 7 Officers (Agriculture) in BS-17, in the NWFP for the “On Farm Water Management Project” on contract basis. The Respondents applied for the said posts and in November, 2004 and February 2005 respectively, they were appointed for the aforementioned posts on contract basis, initially for a period of one year and later extendable to the remaining Project period, subject to their satisfactory performance and on the recommendations of the Departmental Promotion Committee after completion of requisite one month pre-service training. In the year 2006, a proposal for restructuring and establishment of Regular Offices for the “On Farm Water Management Department at District level was made. A summary was prepared for the Chief Minister, KPK, for creation of 302 regular vacancies with the recommendation that eligible temporary/contract employees working on different Projects may be accommodated against regular posts on the basis of their seniority. The Chief Minister approved the summary and accordingly, 275 regular posts were created in the “On Farm Water Management Department” at District level w.e.f 01.07.2007. During the interregnum, the Government of NWFP (now KPK) promulgated Amendment Act IX of 2009, thereby amending Section 19(2) of the NWFP Civil Servants Act, 1973 and NWFP Employees (Regularization of Services) Act, 2009. However, the services of the Respondents were not regularized. Feeling aggrieved, they filed Writ Petitions before the Peshawar High Court, praying that employees placed in similar posts had been granted relief, vide judgment dated 22.12.2008, therefore, they were also entitled to the same treatment. The Writ Petitions were disposed of, vide impugned orders dated 22.09.2011 and 06.06.2012, with the direction to consider the case of the Respondents in the light of the judgment dated CAs.134-P/2013 etc 8 22.12.2008 and 03.12.2009. The Appellants filed Petition for leave to Appeal before this Court in which leave was granted; hence this Appeal and Petition. C.A.No.136-P of 2013 to 138-P of 2013 On Farm Water Management Project, KPK 4. In the years 2004-2005, the Respondents were appointed on various posts on contract basis, for an initial period of one year and extendable for the remaining Project period subject to their satisfactory performance. In the year 2006, a proposal for restructuring and establishment of Regular Offices of “On Farm Water Management Department” was made at District level. A summary was prepared for the Chief Minister, KPK, for creation of 302 regular vacancies, recommending that eligible temporary/contract employees who, at that time, were working on different Projects may be accommodated against regular posts on the basis of seniority. The Chief Minister approved the proposed summary and accordingly 275 regular posts were created in the “On Farm Water Management Department” at District level w.e.f 01.07.2007. During the interregnum, the Government of NWFP (now KPK) promulgated Amendment Act IX of 2009, thereby amending Section 19(2) of the NWFP Civil Servants Act, 1973 and NWFP Employees (Regularization of Services) Act, 2009. However, the services of the Respondents were not regularized. Feeling aggrieved, they filed Writ Petitions before the Peshawar High Court, praying therein that employees placed in similar posts had been granted relief, vide judgment dated 22.12.2008, therefore, they were also entitled to the same treatment. The Writ Petitions were disposed of, vide impugned orders dated 07.03.2012, 13.03.2012 and CAs.134-P/2013 etc 9 20.06.2012, with the direction to consider the case of the Respondents in the light of the judgment dated 22.12.2008 and 03.12.2009. The Appellants filed Petition for leave to Appeal before this Court in which leave was granted; hence these Appeals. Civil Petition No.619-P/2014 Establishment of Database Development Based on Electronic Tools (Project) 5. In the year 2010 and 2011, in pursuance of an advertisement, upon the recommendations of the Project Selection Committee, the Respondents were appointed as Data Base Developer, Web Designer and Naib Qasid, in the Project namely “Establishment of Data Base Development Based on Electronic Tools” including “MIS, Social Welfare and Women Development Department”, on contract basis, initially for one year, which period was extended from time to time. However, the services of the Respondents were terminated, vide order dated 04.07.2013, irrespective of the fact that the Project life was extended and the posts were brought under the regular Provincial Budget. The Respondents impugned their termination order by filing Writ Petition No.2428 of 2013, before the Peshawar High Court, which was disposed of by the impugned judgment dated 18.09.2014, holding that the Respondents would be treated at par, if they were found similarly placed, as held in judgments dated 30.01.2014 and 01.04.2014 passed in Writ Petitions No.2131 of 2013 and 353-P of 2013. The Appellants challenged the judgment of the learned High Court before this Court by filing Petition for leave to Appeal. CAs.134-P/2013 etc 10 Civil Petitions No.368-P of 2014 to 371-P of 2014 Industrial Training Centre Garhi Shehsdad and Industrial Training Centre Garha Tajak, Peshawar 6. In the year 2008, upon the recommendations of the Departmental Selection Committee, after fulfilling all the codal formalities, the Respondents were appointed on contract basis on various posts in Industrial Training Centre Garhi Shehsdad and Industrial Training Centre Garha Tajak, Peshawar. Their period of contract was extended from time to time. On 04.09.2012, the Scheme in which the Respondents were working was brought under the regular Provincial Budget, but the services of the Respondents despite regularization of the Scheme were terminated vide order dated 19.06.2012. The Respondents filed Writ Petitions No.351-P, 352, 353 and 2454-P of 2013, against the order or termination and for regularization of their services on the ground that the posts against which they were appointed stood regularized and had been converted to the regular Provincial Budget, with the approval of the Competent Authority. The learned Peshawar High Court, vide common judgment dated 01.04.2014, allowed the Writ Petitions, reinstating the Respondents in Service from the date of their termination with all consequential benefits. Hence these Petitions by the Petitioners. Civil Petition No.214-P of 2014 Welfare Home for Destitute Children, Charsadda. 7. On 17.03.2009, a post of Superintendent BS-17 was advertised for “Welfare Home for Destitute Children”, Charsadda. The Respondent applied for the same and upon recommendations of the Departmental Selection Committee, she was appointed at the said post on 30.04.2010, on contractual basis till 30.06.2011, beyond which period her contract was extended from time to time. The post against which the CAs.134-P/2013 etc 11 Respondent was serving was brought under the regular Provincial Budget w.e.f 01.07.2012. However, the services of the Respondent were terminated, vide order dated 14.06.2012. Feeling aggrieved, the Respondent filed Writ Petition No.2131 of 2013, which was allowed, vide impugned judgment dated 30.01.2014, whereby it was held that the Respondent would be appointed on conditional basis subject to final decision of this apex Court in Civil Petition No.344-P of 2012. Hence this Petition by the Govt. of KPK. Civil Petition No.621-P of 2015 Daar-ul-Aman Haripur 8. On 17.03.2009, a post of Superintendent BS-17 was advertisement for “Darul Aman”, Haripur. The Respondent applied for the said post and upon recommendations of the Departmental Selection Committee she was appointed w.e.f. 30.04.2010, initially on contract basis till 30.06.2011, beyond which her period of contract was extended from time to time. The post against which the Respondent was serving was brought under the regular Provincial Budget w.e.f 01.07.2012. However, the services of the Respondent were terminated, vide order dated 14.06.2012. Feeling aggrieved, the Respondent filed Writ Petition No.55-A of 2015, which was allowed, vide impugned judgment dated 08.10.2015, holding that “we accept this writ Petition and pass same order as has already been passed by this Court in W.P.No2131-P of 2013 decided on 30.01.2014 and direct the respondents to appoint the Petitioner on conditional basis subject to final decision of the Apex Court in Civil Petition No.344-P of 2012.” Hence this Petition by the Govt. of KPK. CAs.134-P/2013 etc 12 Civil Petition No.28-P of 2014 Darul Kafala, Swat. 9. In the year 2005, the Government of KPK decided to establish Darul Kafalas in different districts of the Province between 01.07.2005 to 30.06.2010. An advertisement was published to fill in various posts in Darul Kafala, Swat. Upon recommendations of the Departmental Selection Committee, the Respondents were appointed on various posts on contract basis for a period of one year w.e.f 01.07.2007 to 30.06.2008, which period was extended from time to time. After expiry of the period of the Project in the year 2010, the Government of KPK has regularized the Project with the approval of the Chief Minister. However, the services of the Respondents were terminated, vide order dated 23.11.2010, with effect from 31.12.2010. The Respondents challenged the aforesaid order before the Peshawar High Court, inter alia, on the ground that the employees working in other Darul Kafalas have been regularized except the employees working in Darul Kafala, Swat. The Respondents contended before the Peshawar High Court that the posts of the Project were brought under the regular Provincial Budget, therefore, they were also entitled to be treated at par with the other employees who were regularized by the Government. The Writ Petition of the Respondents was allowed, vide impugned judgment dated 19.09.2013, with the direction to the Petitioners to regularize the services of the Respondents with effect from the date of their termination. Civil Petitions No.526 to 528-P of 2013 Centre for Mentally Retarded & Physically Handicapped (MR&PH), Nowshera, and Welfare Home for Orphan Female Children Nowshera 10. The Respondents in these Petitions were appointed on contract basis on various posts upon the recommendations of the CAs.134-P/2013 etc 13 Departmental Selection Committee in the Schemes titled “Centre for Mentally Retarded & Physically Handicapped (MR&HP)” and “Welfare Home for Orphan Female Children”, Nowshera, vide order dated 23.08.2006 and 29.08.2006, respectively. Their initial period of contractual appointment was for one year till 30.06.2007, which was extended from time to time till 30.06.2011. By notification dated 08.01.2011, the above- titled Schemes were brought under the regular Provincial Budget of the N.W.F.P. (now KPK) with the approval of the Competent Authority. However, the services of the Respondents were terminated w.e.f 01.07.2011. Feeling aggrieved, the Respondents filed Writ Petitions No.376, 377 and 378-P of 2012, contending that their services were illegally dispensed with and that they were entitled to be regularized in view of the KPK Employees (Regularization of Services Act), 2009, whereby the services of the Project employees working on contract basis had been regularized. The learned High Court, while relying upon the judgment dated 22.03.2012, passed by this Court in Civil Petitions No.562-P to 578-P, 588-P to 589-P, 605-P to 608-P of 2011 and 55-P, 56-P and 60-P of 2012, allowed the Writ Petitions of the Respondents, directing the Petitioners to reinstate the Respondents in service from the date of their termination and regularize them from the date of their appointments. Hence these Petitions. Civil Appeal No.52-P of 2015 11. On 23.06.2004, the Secretary, Agriculture, published an advertisement in the press, inviting Applications for filling up the posts of Water Management Officers (Engineering) and Water Management Officers (Agriculture), BS-17, in the NWFP in the “On Farm Water CAs.134-P/2013 etc 14 Management Project” on contract basis. The Respondent applied for the said post and was appointed as such on contract basis, on the recommendations of the Departmental Promotion Committee after completion of a requisite one month pre-service training, for an initial period of one year, extendable till completion of the Project, subject to his satisfactory performance. In the year 2006, a proposal for restructuring and establishment of Regular Offices of the “On Farm Water Management Department” at District level was made. A summary was prepared for the Chief Minister, KPK, for creation of 302 regular vacancies, recommending that eligible temporary/contract employees working on different Projects may be accommodated against regular posts on the basis of their seniority. The Chief Minister approved the summary and accordingly, 275 regular posts were created in the “On Farm Water Management Department” at District level w.e.f 01.07.2007. During the interregnum, the Government of NWFP (now KPK) promulgated Amendment Act IX of 2009, thereby amending Section 19(2) of the NWFP Civil Servants Act, 1973 and enacted the NWFP Employees (Regularization of Services) Act, 2009. However, the services of the Respondent were not regularized. Feeling aggrieved, he filed Writ Petition No.3087 of 2011 before the Peshawar High Court, praying that employees on similar posts had been granted relief, vide judgment dated 22.12.2008, therefore, he was also entitled to the same treatment. The Writ Petition was allowed, vide impugned order dated 05.12.2012, with the direction to the Appellants to regularize the services of the Respondent. The Appellants filed Petition for leave to Appeal before this Court in which leave was granted; hence this Appeal. CAs.134-P/2013 etc 15 Civil Appeal No.01-P of 2013 Welfare Home for Female Children, Malakand at Batkhela and Industrial Training Centre at Garhi Usman Khel, Dargai. 12. In response to an advertisement, the Respondents applied for different positions in the “Welfare Home for Female Children”, Malakand at Batkhela and “Female Industrial Training Centre” at Garhi Usman Khel. Upon the recommendations of the Departmental Selection Committee, the Respondents were appointed on different posts on different dates in the year 2006, initially on contract basis for a period of one year, which period was extended from time to time. However, the services of the Respondents were terminated, vide order dated 09.07.2011, against which the Respondents filed Writ Petition No.2474 of 2011, inter alia, on the ground that the posts against which they were appointed had been converted to the budgeted posts, therefore, they were entitled to be regularized alongwith the similarly placed and positioned employees. The learned High Court, vide impugned order dated 10.05.2012, allowed the Writ Petition of the Respondents, directing the Appellants to consider the case of regularization of the Respondents. Hence this Appeal by the Appellants. Civil Appeals No.133-P Establishment and Upgradation of Veterinary Outlets (Phase-III)-ADP 13. Consequent upon recommendations of the Departmental Selection Committee, the Respondents were appointed on different posts in the Scheme “Establishment and Up-gradation of Veterinary Outlets (Phase- III)ADP”, on contract basis for the entire duration of the Project, vide orders dated 4.4.2007, 13.4.2007. 17.4.2007 and 19.6.2007, respectively. The contract period was extended from time to time when on 05.06.2009, a CAs.134-P/2013 etc 16 notice was served upon them, intimating them that their services were no longer required after 30.06.2009. The Respondents invoked the constitutional jurisdiction of the Peshawar High Court, by filing Writ Petition No.2001 of 2009, against the order dated 05.06.2009. The Writ Petition of the Respondents was disposed of, by judgment dated 17.05.2012, directing the Appellants to treat the Respondents as regular employees from the date of their termination. Hence this Appeal by the Appellants. Civil Appeal No.113-P of 2013 Establishment of One Science and One Computer Lab in Schools/Colleges of NWFP 14. On 26.09.2006 upon the recommendations of the Departmental Selection Committee, the Respondents were appointed on different posts in the Scheme “Establishment of One Science and One Computer Lab in School/Colleges of NWFP”, on contract basis. Their terms of contractual appointments were extended from time to time when on 06.06.2009, they were served with a notice that their services were not required any more. The Respondents filed Writ Petition No.2380 of 2009, which was allowed on the analogy of judgment rendered in Writ Petition No.2001 of 2009 passed on 17.05.2012. Hence this Appeal by the Appellants. Civil Appeals No.231 and 232-P of 2015 National Program for improvement of Water Courses in Pakistan 15. Upon the recommendations of the Departmental Selection Committee, the Respondents in both the Appeals were appointed on different posts in “National Program for Improvement of Water Courses in Pakistan”, on 17th January 2005 and 19th November 2005, respectively, initially on contract basis for a period of one year, which was extended CAs.134-P/2013 etc 17 from time to time. The Appellants terminated the service of the Respondents w.e.f 01.07.2011, therefore, the Respondents approached the Peshawar High Court, mainly on the ground that the employees placed in similar posts had approached the High Court through W.Ps.No.43/2009, 84/2009 and 21/2009, which Petitions were allowed by judgment dated 21.01.2009 and 04.03.2009. The Appellants filed Review Petitions before the Peshawar High Court, which were disposed of but still disqualified the Appellants filed Civil Petitions No.85, 86, 87 and 91 of 2010 before this Court and Appeals No.834 to 837/2010 arising out of said Petitions were eventually dismissed on 01.03.2011. The learned High Court allowed the Writ Petitions of the Respondents with the direction to treat the Respondents as regular employees. Hence these Appeals by the Appellants. Civil Petition No.496-P of 2014. Provision of Population Welfare Programme 16. In the year 2012, consequent upon the recommendations of the Departmental Selection Committee, the Respondents were appointed on various posts in the project namely “Provision of Population Welfare Programme” on contract basis for the entire duration of the Project. On 08.01.2012, the Project was brought under the regular Provincial Budget. The Respondents applied for their regularization on the touchstone of the judgments already passed by the learned High Court and this Court on the subject. The Appellants contended that the posts of the Respondents did not fall under the scope of the intended regularization, therefore, they preferred Writ Petition No.1730 of 2014, which was disposed of, in view of the judgment of the learned High Court dated 30.01.2014 passed in Writ CAs.134-P/2013 etc 18 Petition No.2131 of 2013 and judgment of this Court in Civil Petition No.344-P of 2012. Hence these Appeals by the Appellants. Civil Petition No.34-P of 2015 Pakistan Institute of Community Ophthalmology Hayatabad Medical Complex, Peshawar 17. The Respondents were appointed on various posts in the “Pakistan Institute of Community Ophthalmology Hayatabad Medical Complex”, Peshawar, in the years 2001, 2002 and from 2007 to 2012, on contract basis. Through advertisement dated 10.01.2014, the said Medical Complex sought fresh Applications through advertisement against the posts held by them. Therefore, the Respondents filed Writ Petition No.141 of 2004, which was disposed of more or less in the terms as state above. Hence this Petition. 18. Mr. Waqar Ahmed Khan, Addl. Advocate General, KPK, appeared on behalf of Govt. of KPK and submitted that the employees in these Appeals/ Petitions were appointed on different dates since 1980. In order to regularize their services, 302 new posts were created. According to him, under the scheme the Project employees were to be appointed stage wise on these posts. Subsequently, a number of Project employees filed Writ Petitions and the learned High Court directed for issuance of orders for the regularization of the Project employees. He further submitted that the concessional statement made by the then Addl. Advocate General, KPK, before the learned High Court to “adjust/regularize the petitioners on the vacant post or posts whenever falling vacant in future but in order of seniority/eligibility.” was not in accordance with law. The employees were appointed on Projects and their appointments on these Projects were to be terminated on the expiry of the Project as it was stipulated that they will not CAs.134-P/2013 etc 19 claim any right of absorption in the Department against regular posts as per existing Project policy. He also referred to the office order dated 31.12.2004 regarding appointment of Mr. Adnanullah (Respondent in CA. No.134-P/2013) and submitted that he was appointed on contract basis for a period of one year and the above mentioned office order clearly indicates that he was neither entitled to pension nor GP Fund and furthermore, had no right of seniority and or regular appointment. His main contention was that the nature of appointment of these Project employees was evident from the advertisement, office order and their appointment letters. All these reflected that they were not entitled to regularization as per the terms of their appointments. 19. In the month of November 2006, a proposal was floated for restructuring and establishment of Regular Offices of “On Farm Water Management Department” at District level in NWFP (now KPK) which was approved by the then Chief Minister KPK; who agreed to create 302 posts of different categories and the expenditure involved was to be met out of the budgetary allocation. The employees already working in the Projects were to be appointed on seniority basis on these newly created posts. Some of the employees working since 1980 had preferential rights for their regularization. In this regard, he also referred to various Notifications since 1980, whereby the Governor KPK was pleased to appoint the candidates upon the recommendations of the KPK Public Service Commission on different Projects on temporary basis and they were to be governed by the KPK Civil Servants Act 1973 and the Rules framed thereunder. 302 posts were created in pursuance of the summary of 2006, out of which 254 posts CAs.134-P/2013 etc 20 were filled on seniority basis, 10 through promotion and 38 by way of Court orders passed by this Court and or the learned Peshawar High Court. He referred to the case of Govt. of NWFP vs. Abdullah Khan (2011 SCMR 898) whereby, the contention of the Appellants (Govt. of NWFP) that the Respondents were Project employees appointed on contractual basis were not entitled to be regularized, was not accepted and it was observed by this Court that definition of “Contract appointment” contained in Section 2(1)(aa) of the NWFP Employees (Regularization of Services) Act, 2009, was not attracted in the cases of the Respondent employees. Thereafter, in the case of Government of NWFP vs. Kaleem Shah (2011 SCMR 1004), this Court followed the judgment of Govt. of NWFP vs. Abdullah Khan (ibid). The judgment, however, was wrongly decided. He further contended that KPK Civil Servants (Amendment) Act 2005, (whereby Section 19 of the KPK Civil Servants Act 1973, was substituted), was not applicable to Project employees. Section 5 of the KPK Civil Servants Act 1973, states that the appointment to a civil service of the Province or to a civil post in connection with the affairs of the Province shall be made in the prescribed manner by the Governor or by a person authorized by the Governor in that behalf. But in the cases in hand, the Project employees were appointed by the Project Director, therefore, they could not claim any right to regularization under the aforesaid provision of law. Furthermore, he contended that the judgment passed by the learned Peshawar High Court is liable to be set aside as it is solely based on the facts that the Respondents who were originally appointed in 1980 had been regularized. He submitted that the High Court erred in regularizing the employees on the touchstone of Article 25 of the Constitution of the Islamic Republic of Pakistan as the CAs.134-P/2013 etc 21 employees appointed in 2005 and those in 1980 were not similarly placed and, therefore, there was no question of discrimination. According to him, they will have to come through fresh inductions to relevant posts if they wish to fall under the scheme of regularization. He further contended that any wrongful action that may have taken place previously, could not justify the commission of another wrong on the basis of such plea. The cases where the orders were passed by DCO without lawful authority could not be said to have been made in accordance with law. Therefore, even if some of the employees had been regularized due to previous wrongful action, others could not take plea of being treated in the same manner. In this regard, he has relied upon the case of Government of Punjab vs. Zafar Iqbal Dogar (2011 SCMR 1239) and Abdul Wahid vs. Chairman CBR (1998 SCMR 882). 20. Mr. Ghulam Nabi Khan, learned ASC, appeared on behalf of Respondent(s) in C.As.134-P/2013, 1-P/2013 and C.P.28-P/2014 and submitted that all of his clients were clerks and appointed on non- commissioned posts. He further submitted that the issue before this Court had already been decided by four different benches of this Court from time to time and one review petition in this regard had also been dismissed. He contended that fifteen Hon’ble Judges of this Court had already given their view in favour of the Respondents and the matter should not have been referred to this Bench for review. He further contended that no employee was regularized until and unless the Project on which he was working was not put under the regular Provincial Budget as such no regular posts were created. The process of regularization was started by the Government itself CAs.134-P/2013 etc 22 without intervention of this Court and without any Act or Statute of the Government. Many of the decisions of the Peshawar High Court were available, wherein the directions for regularization were issued on the basis of discrimination. All the present cases before this Court are related to the category in which the Project became part of the regular Provincial Budget and the posts were created. Thousands of employees were appointed against these posts. He referred to the case of Zulfiqar Ali Bhutto Vs. The State (PLD 1979 SC 741) and submitted that a review was not justifiable, notwithstanding error being apparent on face of record, if judgment or finding, although suffering from an erroneous assumption of facts, was sustainable on other grounds available on record. 21. Hafiz S. A. Rehman, Sr. ASC, appeared on behalf of Respondent(s) in Civil Appeal Nos. 135-136-P/2013 and on behalf of all 174 persons who were issued notice vide leave granting order dated 13.06.2013. He submitted that various Regularization Acts i.e. KPK Adhoc Civil Servants (Regularization of Services) Act, 1987, KPK Adhoc Civil Servants (Regularization of Services) Act, 1988, KPK Employees on Contract Basis (Regularization of Services) Act, 1989, KPK Employees on Contract Basis (Regularization of Services) (Amendment) Act, 1990, KPK Civil Servants (Amendment) Act, 2005, KPK Employees (Regularization of Services) Act, 2009, were promulgated to regularize the services of contractual employees. The Respondents, including 174 to whom he was representing, were appointed during the year 2003/2004 and the services of all the contractual employees were regularized through an Act of legislature i.e. KPK Civil Servants (Amendment) Act, 2005 and the KPK Employees CAs.134-P/2013 etc 23 (Regularization of Services) Act, 2009, was not applicable to present Respondents. He referred to Section 19(2) of the KPK Civil Servants Act 1973, which was substituted vide KPK Civil Servants (Amendment) Act, 2005, provides that “A person though selected for appointment in the prescribed manner to a service or post on or after the 1st day of July, 2001, till the commencement of the said Act, but appointment on contact basis, shall, with effect from the commencement of the said Act, be deemed to have been appointed on regular basis.” Furthermore, vide Notification dated 11.10.1989 issued by the Government of NWFP, the Governor of KPK was pleased to declare the “On Farm Water Management Directorate” as an attached Department of Food, Agriculture, Livestock and Cooperation Department, Govt. of NWFP. Moreover, it was also evident from the Notification dated 03.07.2013 that 115 employees were regularized under section 19 (2) of the Khyber Pakhtunkhwa Civil Servants (Amendment) Act, 2005 and Regularization Act, 2009 from the date of their initial appointment. Therefore, it was a past and closed transaction. Regarding summaries submitted to the Chief Minister for creation of posts, he clarified that it was not one summary (as stated by the learned Addl. Advocate General KPK) but three summaries submitted on 11.06.2006, 04.01.2012 and 20.06.2012, respectively, whereby total 734 different posts of various categories were created for these employees from the regular budgetary allocation. Even through the third summary, the posts were created to regularize the employees in order to implement the judgments of Hon’ble Peshawar High Court dated 15.09.2011, 8.12.2011 and Supreme Court of Pakistan dated 22.3.2012. Approximately, 20-30% employees were CAs.134-P/2013 etc 24 recruited through KPK Public Service Commission and the Public Service Commission is only meant to recommend the candidates on regular posts. 22. Mr. Imtiaz Ali, learned ASC, appearing on behalf of the Respondent in CA No.134-P/2013, submitted that there was one post of Accountant which had been created and that the Respondent, Adnanullah, was the only Accountant who was working there. He contented that, even otherwise, judgment dated 21.9.2009 in Writ Petition No.59/2009, was not questioned before this Court and the same had attained finality. He further submitted that his Writ Petition was allowed on the strength of Writ Petition No. 356/2008 and that no Appeal has been filed against it. 23. Mr. Ayub Khan, learned ASC, appeared in C.M.A 496- P/2013 on behalf of employees whose services might be affected (to whom notices were issued by this Court vide leave granting order dated 13.06.2013) and adopted the arguments advanced by the senior learned counsels including Hafiz S. A. Rehman. 24. Mr. Ijaz Anwar, learned ASC, appeared in C.A 137-P/2013 for Respondents No. 2 to 6, CPs.526-P to 528-P/2013 for Respondents and for Appellant in Civil Appeal No.605-P/2015 (JR) and submitted that the Regularization Act of 2005, is applicable to his case and if benefit is given to some employees then in light of the judgment of this Court titled Government of Punjab Vs. Samina Perveen (2009 SCMR 1), wherein it was observed that if some point of law is decided by Court relating to the terms and conditions of a Civil Servant who litigated and there were other who had not taken any legal proceedings, in such a case the dictates of justice CAs.134-P/2013 etc 25 and rules of good governance demand that the benefit of the said decision be extended to others also who may not be parties to that litigation. Furthermore, the judgment of Peshawar High Court which included Project employees as defined under Section 19(2) of the KPK Civil Servants Act 1973 which was substituted vide KPK Civil Servants (Amendment) Act, 2005, was not challenged. In the NWFP Employees (Regularization of Services) Act, 2009, the Project employees have been excluded but in presence of the judgment delivered by this Court, in the cases of Govt. of NWFP vs. Abdullah Khan (ibid) and Govt. of NWFP vs. Kaleem Shah (ibid), the Peshawar High Court had observed that the similarly placed persons should be considered for regularization. 25. While arguing Civil Appeal No. 605-P/2015, he submitted that in this case the Appellants/ Petitioners were appointed on contract basis for a period of one year vide order dated 18.11.2007, which was subsequently extended from time to time. Thereafter, the services of the Appellants were terminated vide notice dated 30.05.2011. The learned Bench of the Peshawar High Court refused relief to the employees and observed that they were expressly excluded from the purview of Section 2(1)(b) of KPK (Regularization of Services) Act, 2009. He further contended that the Project against which they were appointed had become part of regular Provincial Budget. Thereafter, some of the employees were regularized while others were denied, which made out a clear case of discrimination. Two groups of persons similarly placed could not be treated differently, in this regard he relied on the judgments of Abdul Samad vs. CAs.134-P/2013 etc 26 Federation of Pakistan (2002 SCMR 71) and Engineer Nariandas vs. Federation of Pakistan (2002 SCMR 82). 26. We have heard the learned Law Officer as well as the learned ASCs, representing the parties and have gone through the relevant record with their able assistance. The controversy in these cases pivots around the issue as to whether the Respondents are governed by the provisions of the North West Frontier Province (now KPK) Employees (Regularization of Services) Act, 2009, (hereinafter referred to as the Act). It would be relevant to reproduce Section 3 of the Act: “3. Regularization of Services of certain employees.—All employees including recommendees of the High Court appointed on contract or adhoc basis and holding that post on 31st December, 2008, or till the commencement of this Act shall be deemed to have been validly appointed on regular basis having the same qualification and experience.” 27. The aforesaid Section of the Act reproduced hereinabove clearly provides for the regularization of the employees appointed either on contract basis or adhoc basis and were holding contract appointments on 31st December, 2008 or till the commencement of this Act. Admittedly, the Respondents were appointed on one year contract basis, which period of their appointments was extended from time to time and were holding their respective posts on the cut-of date provided in Section 3 (ibid). 28. Moreover, the Act contains a non-obstante clause in Section 4A which reads as under: “4A. Overriding effect.—Notwithstanding any thing to the contrary contained in any other law or CAs.134-P/2013 etc 27 rule for the time being in force, the provisions of this Act shall have an overriding effect and the provisions of any such law or rule to the extent of inconsistency to this Act shall cease to have effect.” 29. The above Section expressly excludes the application of any other law and declares that the provisions of the Act will have overriding effect, being a special enactment. In this background, the cases of the Respondents squarely fall within the ambit of the Act and their services were mandated to be regulated by the provisions of the Act. 30. It is also an admitted fact that the Respondents were appointed on contract basis on Project posts but the Projects, as conceded by the learned Additional Advocate General, were funded by the Provincial Government by allocating regular Provincial Budget prior to the promulgation of the Act. Almost all the Projects were brought under the regular Provincial Budget Schemes by the Government of KPK and summaries were approved by the Chief Minster of the KPK for operating the Projects on permanent basis. The “On Farm Water Management Project” was brought on the regular side in the year 2006 and the Project was declared as an attached Department of the Food, Agriculture, Livestock and Co-operative Department. Likewise, other Projects were also brought under the regular Provincial Budget Scheme. Therefore, services of the Respondents would not be affected by the language of Section 2(aa) and (b) of the Act, which could only be attracted if the Projects were abolished on the completion of their prescribed tenure. In the cases in hand, the Projects initially were introduced for a specified time whereafter they were transferred on permanent basis by attaching them with Provincial CAs.134-P/2013 etc 28 Government departments. The employees of the same Project were adjusted against the posts created by the Provincial Government in this behalf. 31. The record further reveals that the Respondents were appointed on contract basis and were in employment/service for several years and Projects on which they were appointed have also been taken on the regular Budget of the Government, therefore, their status as Project employees has ended once their services were transferred to the different attached Government Departments, in terms of Section 3 of the Act. The Government of KPK was also obliged to treat the Respondents at par, as it cannot adopt a policy of cherry picking to regularize the employees of certain Projects while terminating the services of other similarly placed employees. 32. The above are the reasons of our short order dated 24.2.2016, which reads as under:- “Arguments heard. For the reasons to be recorded separately, these Appeals, except Civil Appeal No.605 of 2015, are dismissed. Judgment in Civil Appeal No.605 of 2015 is reserved” Chief Justice Judge Judge Judge Judge Islamabad the, 24-02-2016 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 Gulzar Ahmed Mr. Justice Mushir Alam Mr. Justice Mazhar Alam Khan Miankhel Civil Appeals No. 1340, 1341 and 1342 of 2018 and Civil Miscellaneous Application No. 9985 of 2018 in Civil Appeal No. 1340 of 2018 (Against the judgments dated 19.09.2018 passed by the Islamabad High Court, Islamabad in Writ Petitions No. 2839, 2841 and 2842 of 2018) Chairman, National Accountability Bureau, Islamabad through Prosecutor-General Accountability, Islamabad (in all cases) …Appellant versus Mian Muhammad Nawaz Sharif (in C.A. 1340 of 2018) Maryam Nawaz Sharif (in C.A. 1341 of 2018) Capt. (Retd) Muhammad Safdar (in C.A. 1342 of 2018) …Respondents For the appellant: Mr. Muhammad Akram Qureshi, Special Prosecutor, National Accountability Bureau with Mr. Jahanzeb Khan Bharwana, Additional Prosecutor-General, National Accountability Bureau (in all cases) For the respondents: Khawaja Haris Ahmad, Sr. ASC Mr. Mehr Khan Malik, AOR (in C.A. 1340 of 2018) Mr. Muhammad Amjad Pervaiz, ASC Syed Rafaqat Hussain Shah, AOR (in C.A. 1341 of 2018) N.R. (in C.A. 1342 of 2018) For the Applicant: Nomo. (in C.M.A. No. 9985 of 2018 in C.A. 1340 of 2018) Date of hearing: 14.01.2019 Civil Appeals No. 1340, 1341 and 1342 of 2018 2 JUDGMENT Asif Saeed Khan Khosa, J.: Civil Miscellaneous Application No. 9985 of 2018 in Civil Appeal No. 1340 of 2018 The reason mentioned in the application seeking adjournment has not been found by us to be valid or sufficient for the purpose nor is the same supported by any material. 2. Through this miscellaneous application the applicant has prayed for his impleading as a party to the main appeal but we have not felt satisfied with his locus standi or interest in the matter. This miscellaneous application is, therefore, dismissed. Civil Appeals No. 1340, 1341 and 1342 of 2018 3. Through these appeals by leave of this Court granted on 12.11.2018 the appellant/Chairman, National Accountability Bureau has sought setting aside of the impugned judgments passed by a learned Division Bench of the Islamabad High Court, Islamabad in Writ Petitions No. 2839, 2841 and 2842 of 2018 whereby respondents No. 1 in the present appeals were admitted to bail upon suspension of their sentences in their respective criminal appeals filed against their convictions and sentences recorded by the Accountability Court-I, Islamabad on 19.09.2018 in Reference No. 20 of 2017. 4. We have heard the learned counsel for the parties and have gone through the record of the case with their assistance. 5. After hearing the learned counsel for the parties and going through the relevant record with their assistance we have noticed the following shortcomings in the impugned judgments passed by the High Court: Civil Appeals No. 1340, 1341 and 1342 of 2018 3 i) Instead of adhering to the guidelines issued and recommendations made by this Court in the case of Muhammad Shakeel v. The State and others (PLD 2014 SC 458) regarding shorter format of orders to be passed in matters of bail the High Court had written a judgment spanning over 41 pages while deciding the matter of bail of respondents No. 1 upon suspension of their sentences. ii) It is settled law that while deciding an application for bail or suspension of sentence during the pendency of an appeal merits of the case are not adverted to or commented upon in any detail whereas in the impugned judgments passed by it the High Court had not only undertaken a detailed assessment of the merits of the case but had also recorded some categorical conclusions regarding the same. iii) The raison d’être for suspension of sentence during the pendency of an appeal is that due to the peculiarities of his case the convict may not be kept in custody till his appeal is fixed for hearing but in these cases the writ petitions filed by respondents No. 1 had been taken up for hearing and decision at a time when the main appeals were also fixed for hearing. iv) With reference to many a precedent case a Larger Bench of this Court has clarified in the case of Tallat Ishaq v. National Accountability Bureau, etc. (Civil Petition No. 632 of 2019 decided on 01.10.2018) that in cases under the National Accountability Ordinance, 1999 bail may be granted through exercise of Constitutional jurisdiction of a High Court only in extraordinary circumstances and in cases of extreme hardship but in the present cases no such extraordinary circumstance or hardship had been referred to by the High Court in the impugned judgments passed by it. v) In cases pertaining to the offence under section 9(a)(v) of the National Accountability Ordinance, 1999 this Court has identified different ingredients of the said offence in the cases of Syed Qasim Shah v. The State (2009 SCMR 790), Muhammad Hashim Babar v. The State and another (2010 SCMR 1697), Khalid Aziz v. The State (2011 SCMR 136) and Ghani-ur-Rehman v. National Accountability Bureau and others (PLD 2011 SC 1144) explaining which ingredients are Civil Appeals No. 1340, 1341 and 1342 of 2018 4 to be proved by which party and some of the above mentioned precedent cases had been referred to by the High Court in the impugned judgments passed by it. It had not been appreciated by the High Court that in all those precedent cases the accused persons had accepted ownership or possession of the properties in issue whereas in the present cases respondents No. 1 had maintained that the relevant properties did not belong to them nor were they in possession of the same. The High Court had failed to consider whether the above mentioned precedent cases were relevant to the cases in hand or not and whether in the present cases the principle of forfeiture of the defence would apply if the accused persons denied ownership or possession of the relevant properties but in the circumstances of the case such ownership or possession was established. vi) While adverting to some deficiencies in the evidence vis-à-vis the ingredients of the offence under section 9(a)(v) of the National Accountability Ordinance, 1999 the High Court had failed to consider that conclusions in that regard were premature at the stage of bail or suspension of sentence because by virtue of the provisions of section 428, Cr.P.C. additional evidence could be adduced or procured during the pendency of the appeals. 6. Despite the above mentioned deficiencies found by us in the impugned judgments passed by the High Court we are cognizant of the legal position that considerations for grant of bail and those for its cancellation are entirely different. No allegation has been leveled before us regarding any misuse or abuse of the concession of bail by respondents No. 1 to these appeals. One of the said respondents is already in jail after having been convicted and sentenced in connection with another criminal case, another of the said respondents is a woman and the law envisages concession for her in the matter of bail and the sentence of imprisonment passed by the trial court against yet another of the said respondents was quite short. In these peculiar circumstances we have not felt persuaded to interfere with the jurisdiction and discretion exercised by the High Court in the matter of the said respondents’ Civil Appeals No. 1340, 1341 and 1342 of 2018 5 bail upon suspension of their sentences during the pendency of their appeals. These appeals are, therefore, dismissed. Chief Justice Judge Judge Judge Judge Islamabad 14.01.2019 Approved for reporting. Arif

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, CJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB CIVIL APPEAL NO. 1352 OF 2013 (on appeal from the judgment of the Islamabad High Court, Islamabad dated 2.10.2012 passed in I.C.A. No.222/2010) Pakistan Telecommunication Employees Trust …Appellant(s) VERSUS Federation of Pakistan, etc. …Respondent(s) For the Appellant(s): Mr. Hamid Khan, Sr.ASC M.S.Khattak, AOR For the Respondent(s): Abdul Rasheed Awan, DAG Raja Abdul Ghafoor, AOR Date(s) of Hearing: 16.05.2017 & 22.05.2017 … ORDER MIAN SAQIB NISAR, CJ.— The facts of this appeal are that the appellant, Pakistan Telecommunication Employees Trust (the Trust), manages the Pakistan Telecommunication Corporation Employees Pension Fund (the Pension Fund), certain amounts of which were invested in various banks and schemes etc. The Zakat and Ushr Department deducted zakat in terms of Section 3 the Zakat and Ushr Ordinance, 1980 (the Ordinance). The appellant challenged such deductions through a constitution petition before the learned High Court on the ground that the appellant was not a sahib-e-nisab and thus, could not be made subject to compulsory deduction of zakat. The writ petition was dismissed. The appellant’s Intra-Court Appeal was also dismissed by the learned Division Bench of the High Court vide impugned judgment, hence this appeal with the leave of the Court dated 5.11.2013, to consider, inter alia, the following questions:- CIVIL APPEAL NO. 1352 OF 2013 -: 2 :- (a) Whether the appellant, being a trust, does not fall within the definition of sahib-e-nisab provided in Section 2(xxiii) of the Ordinance being a successor to the Pension Fund under Sections 45 and 46 of the Act? (b) Whether the deduction of zakat in the instant case does not fall within the ambit of Section 3 of the Ordinance, which is the charging section read with Schedule-I appended therewith? (c) Whether the Pension Fund, on which zakat is to be deducted, does not fall within the meaning of annuities as defined in the Ordinance? (d) Whether zakat is not payable under Section 3 of the Ordinance by the appellant as it does not own or possess any assets rather held the same as amanat, on which no zakat is leviable? (e) Whether zakat is not payable by the appellant as the funds being administered by it are not its assets but its liability towards the beneficiaries of the Trust in terms of Sections 44 to 46 of the Act? (f) The Pension Fund being a joint account for the beneficiaries/pensioners, who themselves might be liable to deduction of zakat, whether the deduction of zakat prior to the onward payment of money to them would amount to double taxation? 2. Heard. For the sake of brevity, the arguments of the learned counsel for the parties are not recorded separately and shall be reflected in the course of the opinion. The learned counsel for the respondents raised a preliminary objection regarding the maintainability of the writ petition before the learned High Court, that the appellant was established in 1996 and zakat was continuously deducted since 1997, whereas the writ petition was filed in 2004, therefore, the same is hit by CIVIL APPEAL NO. 1352 OF 2013 -: 3 :- laches. We find that the principle of laches does not apply in this case because zakat was deducted from the appellant each year which gave rise to a fresh cause of action to challenge the validity of such deduction. Thus, we hold that the writ petition was maintainable. 3. The fundamental question in this appeal is: what is the legal status of the appellant and whether it falls within the scope of Section 3 of the Ordinance for the purposes of deduction of zakat? In order to answer this question, we find it expedient to discuss the law pertaining to zakat. Section 1(2) of the Ordinance provides for the extent of the application of the Ordinance: (i) territorial jurisdiction, in that it extends to the whole of Pakistan; (ii) subject matter jurisdiction, in that it pertains to payment and recovery of zakat; and (iii) parties’ jurisdiction, in that the Ordinance applies only to Muslim citizens of Pakistan and a company, or other association of persons, or body of individuals, whether incorporated or not, majority of the shares of which is owned, or the beneficial ownership of which is held, by such citizens. Section 3(1) of the Ordinance is important which reads as follows:- 3. Charge and collection of Zakat.– (1) Subject to the other provisions of this Ordinance, Zakat in respect of assets mentioned in the First Schedule shall be charged and collected, on compulsory basis, for each Zakat year, at the rates and in the manner specified therein, and as may be prescribed, from every person who is on the Valuation Date, and for the whole of the preceding Zakat year been, sahib-e-nisab, and who owns or possesses such assets on the Valuation Date: The aforementioned section is the charging provision according to which zakat is to be compulsorily charged and collected for each zakat year in respect of the assets mentioned in the First Schedule from every person CIVIL APPEAL NO. 1352 OF 2013 -: 4 :- who: (i) is, on the Valuation Date, and for the whole of the preceding zakat year been, sahib-e-nisab, and (ii) owns or possesses such assets on the Valuation Date. Sahib-e-nisab has been defined in Section 2(xxiii) as under:- 2(xxiii) ‘sahib-e-nisab’ means a person who owns or possesses assets not less than nisab, but does not include: (a) ……………………………………………………............... (b) a statutory corporation, a company or other enterprise, owned wholly, directly or indirectly, by the Federal Government, a Provincial Government, a local authority or a corporation owned by the Federal Government or a Provincial Government, either singly or jointly with one or more of the other three; � (i) an institution, fund, trust, endowment or society:- (a) registered as a charitable organization under the Societies Registration Act, 1860 (XXI of 1860), or as a company under section 26 of the Companies Act, 1913 (VII of 1913), or registered or approved as a charitable or social welfare organisation under any other law for the time being in force, and (b) approved by the Central Board of Revenue for the purposes of section 47 of the Income Tax Ordinance, 1979 (XXXI of 1979); [Emphasis supplied] According to the above definition, sahib-e-nisab is a person who owns or possesses assets not less than nisab which has been defined in Section 2(xva) of the Ordinance as follows:- 2(xva) ‘nisab’ in relation to assets liable to Zakat, except agricultural produce and animals fed free in pastures, means 612.32 grams of silver, or cash or gold, or goods for trade, CIVIL APPEAL NO. 1352 OF 2013 -: 5 :- or any assets liable to Zakat under Shariah, the aggregate value of which is equal to the value of 612.32 grams of silver, as notified by the Administrator-General for each Zakat year or, in the case of a person whose assets liable to Zakat consist only of gold, 87.48 grams of gold; 4. It is not disputed that the Pension Fund was less than the nisab prescribed in Section 2(xva) ibid. The main contention of the learned counsel for the appellant is that the Ordinance does not apply to the appellant as it is not a sahib-e-nisab in terms of Section 2(xxiii)(b) of the Ordinance, as it is a statutory corporation wholly owned by the Federal Government. In this regard, he relied upon the judgment reported as Administration General Zakat, Central Zakat administration, Islamabad and others Vs. Pakistan Insurance Corporation through Secretary and others (PLD 2016 SC 468). He also argued that the Ordinance did not apply to the appellant as according to Section 1(2) thereof, it applied only to Muslim citizens which he contended the appellant is not. On the other hand, learned counsel for the respondents submitted that the appellant is not owned by the Federal Government, thus is a sahib-e-nisab and is not exempt from the deduction of zakat. Thus, we must examine the nature and status of the appellant, for which the relevant provisions of the Pakistan Telecommunication (Re-organisation) Act, 1996 (the Act). Section 2(w) of the Act defines ‘Trust’ which “means the Pakistan Telecommunication Employees Trust established under section 44;” Section 44(1) of the Act provides that “As soon as may be, after the commencement of this Act, the Federal Government shall, by notification in the official Gazette, establish a trust to be called the Pakistan Telecommunication Employees Trust.” According to sub-section (2) thereof, the Trust shall be a body corporate, having perpetual succession and a common seal with power (subject to the provisions of the Act) to acquire and hold CIVIL APPEAL NO. 1352 OF 2013 -: 6 :- property, both moveable and immovable, and shall sue and be sued by its name. Sub-section (3) stipulates that the Trust is to be managed by a Board of Trustees (the Board) consisting of six trustees, three to be appointed by the Federal Government and three by Pakistan Telecommunication Company Limited (the Company), for a period of three years, unless earlier removed by the appointing authority. Section 45(1) of the Act provides:- 45. Pension Fund.- (1) The Federal Government shall, by notification in the official Gazette, order that from the effective date, all assets of the Pakistan Telecommunication Corporation Employees Pension Fund as created by a Trust Deed dated the 2nd April 1994, hereinafter referred to as the "Pension Fund", and such liabilities as are specified in the notification, shall vest in and shall become the assets and liabilities of the Trust: Provided that……………………………………………… Sub-section (3) thereof lists the amounts and contributions that the Fund is to consist of:- (3) The Pension Fund shall consist of- (a) amounts received from the Pakistan Telecommunication Corporation Employees Pension Fund referred to in sub-section (1); (b) contribution to be paid by the Company under sub- section (2); (c) annual contribution to be paid by the Company at the commencement of each financial year; (d) investments and the profits, gains and other returns accrued on such investments; and (e) donations and other contributions by individuals or any aid-giving agencies. CIVIL APPEAL NO. 1352 OF 2013 -: 7 :- Section 46 of the Act goes onto stipulate the functions and powers of the Trust which read as under:- 46. Functions and powers of the Trust.- (1) For carrying out the purposes of the Trust, the Board of Trustees shall- (a) take over and assume the liability of the Pension Fund, including contributions of the Company to the Pension Fund; (b) obtain payment from the Company of the amount determined by Actuary as representing the unfunded proportion of the accrued pension liabilities to be discharged by the Company; (c) determine, at the commencement of each financial year, the amount to be contributed to the Pension Fund by the Company; and (d) make provision for the payment of pension to telecommunication employees to the extent of their entitlement. (2) In performance of its functions, the Board of Trustees shall- (a) have the exclusive right to determine the amounts, if any, payable in respect of pension benefits to the telecommunication employees; (b) administer and operate the Pension Fund; (c) specify and certify the requirements to be fulfilled for payments of the pensions to be made from the Pension Fund; (d) appoint, promote, remove and exercise discipline and control over its employees; (e) enter into contracts; (f) acquire, lease, encumber, dispose of, exchange, invest or otherwise deal with any moveable or immovable property or any interest therein; and (g) exercise all such powers as may be necessary or incidental to the performance of any of its functions or the exercise of any of its powers. CIVIL APPEAL NO. 1352 OF 2013 -: 8 :- (3) The Manager of the Board of Trustees shall be responsible for administrative control of the employees of the Trust and day to day working of the Trust as may be assigned to him by the Board of Trustees. A cumulative reading of above provisions makes clear that the appellant is an independent and autonomous body which is not wholly owned, directly or indirectly, by the Federal Government. Mere creation by a notification issued by the Federal Government under Section 44 of the Act does not, to our mind, mean that the Trust is wholly owned by the Federal Government. It can acquire and hold property, both moveable and immoveable, and can sue and be sued in its own name. The Trust is managed by the Board which is free to take decisions by simple majority, and just because half of the members of the Board are appointed by the Federal Government, one cannot conclude that the Trust is owned by the Federal Government. For all its actions, it is neither required to obtain prior permission nor is bound to get the same validated from the Federal Government, apart from the framing of rules for the management and conduct of business of the Trust in accordance with Section 44(9) of the Act. We find that this single factor is not sufficient to establish whole ownership of the Federal Government. Furthermore, as is clear from Section 45(1) of the Act, a Pension Fund was created, albeit by the Federal Government through a notification in the official Gazette, and all the assets of Pakistan Telecommunication Corporation (PTC) Employees Pension Fund created by a trust deed dated 2.4.1994, and such liabilities as were specified in the notification, vested in and became the assets and liabilities of the appellant. As is manifest from Section 45(2) of the Act, the Federal Government makes no contributions whatsoever to the Pension Fund. A bare reading of Section 46 of the Act makes clear that the Board is free and independent to exercise its powers and carry CIVIL APPEAL NO. 1352 OF 2013 -: 9 :- out its functions in accordance with law with no interference whatsoever from the Federal Government. Moreover, Section 53(2) of the Act lends support to the proposition that the Pension Fund is owned by the Trust and not the Federal Government, as “The balance of the Pension Fund shall, on the winding up of the Trust, be paid to the Federal Government…” suggesting that till winding up of the Trust, the Pension Fund is not owned by the Federal Government but the Trust itself. Hence it is safe to say that the appellant is not owned, directly or indirectly, by the Federal Government and is therefore not excluded from the definition of sahib-e-nisab under Section 2(xxiii)(b) of the Ordinance. Additionally, the appellant is no doubt a body of individuals, albeit not incorporated, the beneficial ownership of which is held, by Muslim citizens, as it is not the case of the appellant that the majority of the employees/pensioners are non- Muslims; thus, the Ordinance is applicable to the appellant in terms of territorial, subject matter and parties’ jurisdiction contained in Section 1(2) thereof. As regards the National Insurance Corporation’s case (supra) relied upon by the learned counsel for the appellant, suffice it to say that in the said judgment this Court declared the Corporation to be exempt from the deduction of zakat as it was wholly owned by the Federal Government. The said case is distinguishable from the instant case and cannot be relied upon, as we have held above, the appellant is not wholly owned, directly or indirectly, by the Federal Government. 5. Learned counsel for the appellant also argued that the Ordinance does not apply to the appellant as it is not a sahib-e-nisab in terms of Section 2(xxiii)(i) of the Ordinance being a charitable trust meant for the social welfare of the employees of the Company. In this regard, it is to be noted that as reproduced above, an institution, fund, trust, endowment or society is exempt from deduction of zakat in terms CIVIL APPEAL NO. 1352 OF 2013 -: 10 :- of Section 2(xxiii)(i) ibid only if it meets two criteria: (a) it is registered as a charitable organization under the Societies Registration Act, 1860, or as a company under Section 26 of the Companies Act, 1913, or registered or approved as a charitable or social welfare organization under any other law for the time being in force; and (b) it is approved by the Central Board of Revenue for the purposes of Section 47 of the Income Tax Ordinance, 1979. When the learned counsel for the appellant was confronted with this provision, he candidly conceded that the appellant is not registered as a charitable or social welfare organization under any relevant law. Yet, he argued that the trust has been created for a public purpose, namely to pay pension to the government employees of the Pakistan Telephone and Telegraph Department (the Department) which later became the employees of the Company, therefore, it should be exempted from the deduction of zakat. We do not find that the appellant is involved in any social welfare or charitable activity, rather it only provides pension to the retiring employees of the erstwhile Department. In this regard, this Court has held in various judgments that pension is not bounty, but is a right acquired in consideration of past service. The right to pension is a well-earned right subject to fulfillment of the conditions provided in the law. Learned counsel also submitted that the provision ibid should be construed in a wide manner to encompass all types of trusts, including the appellant, and not be restricted to those who fulfill part (a) and (b) of Section 2(xxiii)(i) supra. We are of the view that the law is clear, in that the appellant, albeit a trust (note:- certain provisions of the Trusts Act, 1882 are applicable to the appellant according to Section 52 of the Ordinance), must fulfill the conditions contained in part (a) and (b) of Section 2(xxiii)(i) ibid which admittedly the appellant does not. We are not willing to read in ‘any type of trust’ into Section 2(xxiii)(i) ibid as that would render part (a) and (b) thereof to be entirely CIVIL APPEAL NO. 1352 OF 2013 -: 11 :- redundant, and redundancy cannot be attributed to the legislature. Therefore, the appellant is not a trust that falls within the provisions of Section 2(xxiii)(i) of the Ordinance and is thus not excluded from the definition of sahib-e-nisab. 6. Learned counsel for the appellant also argued that the Pension Fund is not an asset of the appellant, rather it (the appellant) is only a conduit and merely holds the Pension Fund on trust for the employees/pensioners of the Company as amanat, thus the appellant is exempt from payment of zakat. According to the learned counsel, vesting in management cannot be equated with vesting in ownership. In this behalf, he relied on the case of Board of Foreign Missions of the Presbyterian Church in the United States of America through Lahore Church Counsel Vs. the Government of the Punjab through Secretary Education, Civil Secretariat, Lahore and another (1987 SCMR 1197). As mentioned above, under Section 45 of the Act, all assets of the PTC Employees Pension Fund and such liabilities as were specified in the notification, stood vested in the appellant and became its assets and liabilities. Under Section 46 of the Act, the Board is to take over and assume the liability of the Pension Fund, including contributions of the Company to the Pension Fund [clause (a)]. Furthermore, the Board is authorized to, inter alia, administer and operate the Pension Fund [Section 46(2)(b)] and acquire, lease, encumber, dispose of, exchange, invest or otherwise deal with any moveable or immoveable property or any interest therein [Section 46(2)(f)]. Thus, the appellant clearly holds and possesses the assets, i.e. the Pension Fund. It is pertinent to mention here that in the definition of sahib-e-nisab under Section 2(xxiii) of the Ordinance, the phrase used is “a person who owns or possesses assets”. Likewise, the requirement of Section 3 ibid is also that “who owns or possesses such assets on the Valuation Date”. The word ‘or’ CIVIL APPEAL NO. 1352 OF 2013 -: 12 :- signifies that to ‘own’ and ‘possess’ are separate and disjunctive. To qualify as a sahib-e-nisab and to fall within the ambit of the charging section (Section 3 of the Ordinance), a person may not necessarily be the owner of an asset rather need only possess the same. Therefore though in the above discussion we have found that for all intents and purposes it is the Trust that owns or has the legal title to the assets, even if it is accepted that the real ownership is the beneficial ownership which vests in the employees/pensioners who are the beneficiaries of the Pension Fund, the Trust being in possession of such Fund would still qualify as a sahib-e- nisab under Section 2(xxiii) of the Ordinance and would fall within the ambit of Section 3 thereof and be liable to payment of zakat. As regards the case of Board of Foreign Missions of the Presbyterian Church in the United States of America relied upon by the learned counsel for the appellant, though it was observed by this Court that the word ‘vest’ is a word of variable import, not having a fixed connotation and does not necessarily mean to ‘vest in title’, yet the facts of the said case are entirely distinguishable from the instant case. The issue involved therein was that whether after taking over of the management of the privately managed schools by the Federal Government, the property owned by them vested in the Government or not. The Court finally held that the intention of Martial Law Regulation No.118 manifestly was only to take over the management of the institutions and not to confiscate the property in which the privately managed schools were being run. Thus, the ratio of the said case is not attracted to the instant case. 7. We now advert to the argument of the learned counsel for the appellant that zakat is payable on assets and not liabilities, and that the Pension Fund is entirely a liability. Accepting this contention would mean that all banks and financial institutions, etc. which hold non- CIVIL APPEAL NO. 1352 OF 2013 -: 13 :- charitable funds and endowments, etc. would also be exempt from zakat for the mere reason that such funds and endowments, etc. are liabilities held for the depositor, account holder or beneficiary. This would be ludicrous. Therefore, we do not find any force in this argument which is hereby repelled. In fact, the balance sheet of the appellant reflects that upon investment of the amounts in the Pension Fund, the appellant has earned a certain amount of income. This negates the argument that the Pension Fund is a liability. 8. Finally, the learned counsel for the appellant submitted that deducting zakat from the appellant would amount to double taxation as zakat would subsequently be deducted from the person who eventually receives the pension (if he is a sahib-e-nisab). To our mind, this prospect is misconceived. Zakat under the Ordinance is collected only once a year. If in one year, zakat was deducted from the appellant, and subsequently an employee/pensioner was determined to be entitled to pension and was made such payment from the Pension Fund, for the next year when such pensioner holds and possesses his pension amount, if he fulfills the conditions of Section 3 of the Ordinance and is a sahib-e-nisab, it is only he who would be liable to pay zakat upon the amount held by him, and not the appellant which has ceased to hold and possess such amount. Therefore, there is no possibility of double taxation and this argument too, is rejected. 9. As we have found above that the appellant is a sahib-e-nisab and the Pension Fund is an asset owned and possessed by the appellant, therefore, it (the appellant) is liable to compulsory payment of zakat under Section 3 of the Ordinance, thus the question as to whether the Pension Fund does not fall within the meaning of annuities as defined in the Ordinance does not need any deliberation. During the course of arguments, the learned counsel for the appellant gave up the argument CIVIL APPEAL NO. 1352 OF 2013 -: 14 :- regarding the Pension Fund being a joint account for the beneficiaries/pensioners. 10. In the light of the above, we do not find any reason to interfere in the impugned judgment. Resultantly, this appeal is dismissed. CHIEF JUSTICE JUDGE JUDGE Announced in open Court on 4.8.2017 at Islamabad Approved for reporting Mudassar/

{'id': 'C.A.1352_2013.pdf', 'url': ''}

{'id': 'C.A.1352_2013.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice MazharAlam Khan Miankhel Mr. Justice MunibAkhtar Civil Appeal No.1355/2006 and Civil Appeal No.1495/2006 (On appeal from the judgment dated 1.8.2006 passed by the High Court of Sindh at Karachi in HCA No.91/2006 & HCA.No.108/2006). 1. Mrs. ZakiaHussain and another ..(In CA.1355/2006) 2. Mrs. ZakiaHussain ..(In CA.1495/2006) …Appellants VERSUS 1. Syed FarooqHussain ..(In CA.1355/2006) 2. Syed FarooqHussain ..(In CA.1495/2006) …Respondent(s) For the appellants: Malik MuhammadQayyum, Sr. ASC (In both cases) alongwith Syed Akbar Hussain For the respondent(s): Mr. ShahabSarki, ASC (In both cases) alongwith Syed FarooqHussain Date of hearing: 12.2.2020&13.2.2020 JUDGMENT MazharAlam Khan Miankhel, J-. A sale agreement dated 31.01.2001 regarding Apartment No.4, third floor, Kashmir Court, Plot No.162/F/3, P.E.C.H.S., Karachi (Suit Property) is the matter of concern CA.1355/2006 etc 2 between the parties to the present lis, i.e. the appellants as vendor/Defendants (Appellants) and the Respondent being the vendee/Plaintiff (Respondent). As per allegations in the plaint, when the appellants failed to perform their part of contract, respondent filed a suit for declaration alongwithsix other prayers fully described in the plaint. The appellants by contesting the same filed their written statement. After a regular trial, learned trial Court (High Court of Sindh) granted a decree in favour of respondent vide its judgment and decree dated 13.3.2006 but only withregard to prayers A, B and C and the said judgment & decree was silent with regard to other prayers. Both the parties feeling themselves aggrieved of the same, filed their respective appeals (HCA No. 91/2006 and HCA No.108/2006). After hearing the parties, the learned division Bench of the High Court allowed the appeal of respondent (H.C.A.108/2006) by defining the terms and conditions of the judgment & decree by way of a short order dated 18.05.2006 whereas the appeal of the present appellants, (HCA.91/2006) was dismissed by way of a common judgment and decree dated 01.08.2006. 2. The appellants still feeling aggrieved have questioned the above noted common judgment & decree dated 01.08.2006 through two separate appeals before this court. 3. These appeals are pending adjudication since 2006. Once on 13.10.2016, this Court during the course of hearing had CA.1355/2006 etc 3 noted that the respondent, during the course of trial, had not appeared as his witness and his attorney, who was not fully conversant with the facts and circumstances of the case personally, had deposed in the Court which is nothingless than a hearsay and the attorney does not fall within the purview of Order III Rule 1 & 2 of Civil Procedure Code 1908 (CPC). Besides the above, the oral evidence in the case was not recorded by the court itself as provided in Order XVIIIof CPC rather the same was recorded through a local commissionwhich does not qualify the test of exceptions for the purposes of recording of evidence by the commission. To resolve the above questions of law, Syed Najmal- ul-Hassan Kazmi and Mr. Makhdoom Ali Khan learned Senior Advocates Supreme Court were appointed as amicus curiae. 4. Both the learned Senior Advocates Supreme Court submitted their valuable written submissions through C.M.As.No.9968 and 9969 of 2017 respectively. We must appreciate that these submissions are really very helpful and beneficial to decide the above issues. 5. We, before considering the merits of the case, would like to dilate upon the above said legal questions. To consider the said issues, we may observe that there is no hard and fast rule available in law to answer the above questions. Facts and circumstances of each case are the determiningfactors in considering such like questions. CA.1355/2006 etc 4 6. There is no cavilto the proposition that a question of law can be raised at any stage of the case but again that has to be considered in the light of facts and circumstances of each case. It is for the court to decide whether such party can be allowed to raise such objection for the first time before this court or facts and circumstances of a case do not permit to allow a party to raise such question for the first time. 7. The courts of civil judicature for their procedure are regulated by the Code of Civil Procedure (Act V 1908) (Code) but at the same time it does not affect any special or local law or any special jurisdiction or power conferred or any special forum of procedure prescribed by any other law. It provides the general procedure for trial and proceedings of the civil cases besides the inherent jurisdiction of the civil courts. Appearance of parties during the trial/proceedings in person or through recognized agent/attorney is provided in Order III of the Code. So, appearance of attorney on behalf of a party is not alien to the civil judicature. An attorney is competent to act on behalf of the party in the light of specific authority given to him. The question beforeus requiring determination is whether a witness not fully conversant with the facts and circumstances of the case would be a competent witness within the meaning of Rule 1 & 2 of Order III CPC. The case law of the country so far developed regarding this question is based on the facts and circumstances CA.1355/2006 etc 5 of each case. Initially, it is the party itself to depose about the first hand and direct evidence of material facts of the transaction or the dispute and its attorney having no such information cannot be termed as a competent witness within the meaning of Order III Rule 1 & 2 of CPC. Yes! The attorney can step-in as a witness if he possesses the first hand and direct information of the material facts of the case or the party had acted through the attorney from the very inception till the accrual of cause of action. Deposition of such an attorney under the law would be as good as that of the principal itself. Non-appearance of the party as a witness in such a situation would not be fatal. If facts and circumstances of the case reflect that a party intentionally did not appear before the court to depose in person just to avoid the test of cross examination or with an intention to suppress some material facts from the court, then it will be open for the court to presume adversely against said party as provided in Article 129 (g) of Qanun-e-Shahadat, Order 1984 (QSO, 1984). 8. Similarly while coming to the second question we may observe that recording of evidence is the job of the court. A witness while deposing before a court, his veracity, conduct and demeanor is adjudged by the court. A witness can be a party to the suit itself or attorney or witness of other facts and record. Rule 4 of Order XVIII (CPC) requires that evidence of a witness be recorded in open court. During such exercise court has to decide CA.1355/2006 etc 6 about the admissibility of documents/evidence. Also the question of re-examination of a witness and allowing a party to cross- examine its own witness is also to be determined by the court but subject to the facts and circumstances of the case. Sometimes a woman as a witness is exempted from personal appearance as provided in Section 132 of CPC. A kind of sickness or infirmity of a witness may compel the court to issue commission for recording of evidence of such witness. Sometimes a witness is within the jurisdiction of the Court but cannot appear for any compelling reasons or a person outside the jurisdiction of the courtor is going to leave the jurisdiction or a person in the service of state can be examined through a commission. Even a commission can be issued to a court to record the evidence of a person residing within its jurisdiction. This entire procedure is provided in Section 75 to 78 read with Order XXVI of CPC.Even a local commission can be issued with consent of the parties. The provision of Rule 8 of the Order ibid would make it clear that an evidence taken under a commission cannot be read as evidence in the suit but with the consent of the party against whom the same is offered. It is for the court to satisfy itself regarding the conditions necessary for issuance of commission and on return of commission with deposition of witnesses,court can order it to be made part of the record of the suit. Even a High Court may issue a commission for recording of evidence of a witness under Rule 19 of Order ibid. So, in view of CA.1355/2006 etc 7 the above discussion, we can say that it is the court seized of the matter to take a decision for issuance of commission by keeping in mind the facts and circumstances of the case. 9. After considering the above legal position, we would like to dilate upon the merits of the case by keeping in mind the above discussion on the questions of law. 10. The main stress of the learned counsel for the appellantsthrough his oral as well as written submissions remained the same as pointed out in question No.1 above. Besides this technical though legal argument, other submissions of the learned counsel for the appellants were that respondent did not make final payment of Rs.6,50,000/- inspite of reminders which as per sale agreement dated 31.01.2001 was to be paid on or before 31.07.2001 and thereby failed to perform his part of contract which prompted the appellants to cancel the sale agreement on 02.08.2001 as the date fixed for payment was the essence of contract. He further argued that appellants in order to perform their part of agreement were always ready to deliver the possession of the suit property “as is where is basis” but due to financial restraints respondent did not make the balance payment and failed to get possession of the suit property and prayed for dismissal of suit by accepting instant appeals. 11. As against that the learned counsel for the respondent submitted that the appellants had approved plan and CA.1355/2006 etc 8 permission to raise construction of ground plus two floors and they had no such legal permission to raise construction of 3rd floor. The appellants by practicing fraud and concealment of this material fact, did not disclose the legal defect in their capacity to enter into an agreement for sale of an apartment on the third floor for which they had no valid and legal approval/sanction by the authority concerned. The cancellation of sale agreement unilaterally,he argued, is unlawful andhaveno adverse effect on his rights.He argued that the respondent was ready throughout to fulfill his part of agreement by making final payment but appellants were not in a position to deliver the possession of the apartment as the same was incomplete and not ready besides there was no legal approval/sanction for raising such construction. With these submissions the learned counsel for respondent supported the impugned judgment and decree and prayed for dismissal of both the appeals. 12. Learned counsel for the parties were heard and record of the case was perused. The perusal of the record would reveal that only non-payment of balance amount of Rs.6,50,000/- and the factum of legal and valid authority of appellants to enter into an agreement of sale in absence of approval/sanction from KBCA to raise construction of 3rd floor and the two law points discussed above would require consideration. Besides the above, we would also like to consider as to whether the facts and circumstances of CA.1355/2006 etc 9 the case attract the commission of fraud, concealment of true facts and malice on the part of appellants. The execution of sale agreement dated 31.01.2001, payment of part of sale consideration amounting to Rs.1.5 million and the outstanding amount of sale consideration i.e. Rs.6,50.000/- on or before 31.07.2001 never remained disputed between the parties. Besides the above admissions, it has also been established on the record that initially the appellants, had lawful approval of Karachi Building Control Authority (KBCA) to raise construction of ground plus two floors and they had no such approval for raising construction of 3rd floor. Though their case in this regard, as per record and even admissions made by the appellants, remained pending since 1995 with KBCA and they also filed two civil suitsbefore the High court and then before the lower court but both the suits were dismissed. Again an established fact is that the appellants got lawful approval of occupying of entire building including 3rd floor on 25.02.2003 by the KBCA much after the filing of instant suit on 10.10.2001. 13. We, in the circumstance, first would like to discuss the effect of two legal questions mentioned above. The legal position in general of the issues has already been discussed above. Mainstress of arguments of the learned counsel for the appellants was also with regard to first question. No doubt, respondent, being a vendee to the sale agreement in question, CA.1355/2006 etc 10 did not appear as his witness to depose about the material facts but when we go through the record of the case, it appears that this never remained a question of defence of the appellants throughout the trial and even during the course of hearing of their appeal by the High Court. They even did not bother to raise a specific ground in this regard.No doubt certain questions regarding some facts were put to attorney and he was not aware of the same. But in our view all the material facts requiring determination are either admitted or to be considered in accordance with law by the court. So, unawareness of the attorney regarding some immaterial facts would not make any dent muchless serious and material in the case of respondent.Since respondent, as an admitted fact, was abroad for his job, had appointed an attorney to pursue his case and his mere presence alongwith the original record on the day statement of attorney was recorded would again not be fatal to the merits of the case. Points in issue and disputed facts requiring consideration by the court are well before the court. Appointment of attorney in any special circumstance is within the sphere of law. That special circumstance of respondents living abroad is also not a disputed fact. His statement in the circumstances cannot be held to be against the provisions of Rule 1 & 2 of Order III (CPC). A look at the entire statement of GhulamHyderAbbasi, the attorney, would alsomake it clear that the same is a good CA.1355/2006 etc 11 piece of evidence and he was fully aware of the material facts of the case. 14. Learned counsel for the appellants has relied upon the case law which in the circumstances cannot be made applicable to the facts and circumstance of the present case Dilshad Begum v. NisarAkhtar (2012 SCMR 1106) and Abdul Qayyum v. Muhammad Sadiq (2007 SCMR 957). Both the above noted cases were given under pre-emption laws and a question of performance of talabs by the agent was involved and there was no reason available on the record as to why the principal did not appear before the court to establish the factum of talabbut in the case in hand reasons of absence of respondent were admitted as discussed above and there was not a single material fact which required its establishment by the plaintiffhimself. Again case of Abdullah Khan v. Nisar Muhammad Khan (PLD 1959 (W.P.) Peshawar 81) would also not be applicable. We fully agree with the finding that party knowing the facts should appear to face the test of cross-examination and this is the settled law. But here in this case reasons for appointment of attorney were not denied. Yes! on the day of recording of evidence his attorney had called him from abroad to bring the original record which he did. So, we in the circumstances, hold that non-appearance of respondent as his witness will have no adverse effect on his case. CA.1355/2006 etc 12 As far as 2ndquestion is concerned, issuance of commission for recording of evidence is also within the jurisdiction of court and domain of law. The conditions and situations for issuance of commission have been discussed above. Record of the case reveals that the commission for recording of evidence was issued with consent ofboth the parties vide order dated 22.4.2002. Since trial of civil cases is conducted by the High Court and it is the general practice of the High Courtof Sindh that because of rush of work commissions are normally issued with the consent of the parties. If any party has got any objection regarding issuance of commission then, as per practice of the court, that objection is noted and properly considered by the court. We can lay hands on some of the cases wherein similar conditions have been dealt with.KhawajaFeroz v. Muhammad Dawood) (PLD 2008 Karachi 239), Badar Rahim v. HammadAsifDosslani(2009 CLC 459), IqbalM. Hamza v. Gillette Pakistan Ltd (2011 YLR 277), Hafeez Begum v. Zainab Muhammad Ali(2014 MLD 1000).Even Islamabad High Court in a case reported as BBC Pakistan (Pvt) Ltd v. MasudAlam(2018 YLR 363)adopted the same view. Besides the above, we may refer to a new provision of Rule 1A of Order X CPC where-under court CA.1355/2006 etc 13 can adopt any lawful procedure, not inconsistent with the provisions of CPC, including issuance of commission with the consent of parties amongst others. The same is reproduced for ready reference:- “ORDER X EXAMINATION OF PARTIES BY THE COURT 1. Ascertainment whether allegations in pleadings are admitted or denied._____ ……………………………………………………… [1A.The Court may adopt any lawful procedure not inconsistent with the provisions of this Code to:- (i) Conduct preliminary proceedings and issue orders for expediting processing of the case; (ii) Issue, with the consent of the parties, commission to examine witnesses, admit documents and take other steps for purposes of trial; (iii) Adopt, with the consent of the parties, any alternative method of the dispute resolution including mediation, conciliation or any such other means.]. However, provincial assembly of Sindh introduced certain amendments to the Code of Civil Procedure Act (Act V of 1908) vide its Sindh Act IV of 2019 dated 25.02.2019 whereby Order X Rule 1A was substituted through Section 5 of the Act ibid which reads as under:- CA.1355/2006 etc 14 “1A.- The Court may adopt any lawful procedure not inconsistent with the provisions of this Code and adopt any method of Alternative Dispute Resolution (hereinafter referred to as “ADR”) under Section 89A of this Code”. 15. This court in the case Muhammad Sharif v. NabiBakhsh (2012 SCMR 900) has also appreciated this rule. While coming backto the facts of the case, we see that even no one raised any objection in this regard. During recording of evidence not a single objection of law was raised before the commission which could have hampered the proceedings before the commission. So, we without any hesitation can hold that there was no illegality in issuance of commission who only recorded the version of the parties and accepted the documents in evidence. The veracity of the evidence and authenticity and admissibility of documents was considered by the court itself which makes it lawful. Besides, no objection was raised by any of the parties during hearing either before the trial court or before the High Court in appeal. So, this does not lie in their mouth to raise such objection before this Court for the first time. 16. As far as next argument of the learned counsel for the appellants regarding non fulfillment of part of contract by the respondent by failing to make final payment on due date is concerned, that,in the peculiar circumstances of the case in hand, appears to be absurd and illogical. There is no denial of the fact that the date on which final payment was to be made i.e. CA.1355/2006 etc 15 31.7.2001 the apartment in question was incomplete. The appellants being fully aware of its non-completion and having full knowledge of lack of approval/sanction of construction of third floor (where the suit property is situated) by KBCA, the concerned authority, unilaterally cancelled the sale agreement dated 31.01.2001 through a notice dated 02.08.2001 (sent through fax). The only reason for cancellation of sale agreement was non-payment of the balance amount of Rs.6,50,000/- by invoking and taking advantage of Clause 6 of the sale agreement but on the same side they just ignoredother Clauses of the sale agreement which speak of delivery of vacant and peaceful possession of the premises after informing vendee in writing and execution and registration of sale/sub-lease deed. There is nothing in black and white from the side of appellants asking the respondent to take possession. The agreement is silent regarding a specification of date and time of delivery of vacant possession and also the date of execution and registration of sale/sub-lease deed and it only mentions the date of final payment agreed between the parties. It is worth to mention that the sale price of the suit property included water, electricity and gas charges. The unilateral act of cancellation of sale agreement by the appellants was based on their misconception and mistaken belief of a term used in the sale agreement, “as is where is basis”. During the trial of the case appellants tried to develop a case that the respondent had agreed to accept delivery of possession of CA.1355/2006 etc 16 incomplete apartment as he was short of finances and for that matter this clause was added in the agreement. Had this been the situation, it must have been written in the agreement in clear and unambiguous words. The respondent while observing the same incomplete condition of the apartment, finally served the appellants with a notice dated 7.9.2001 that he is ready to make payment subject to delivery of possession of apartment, complete in all respects and execution/registration of sale/sub-lease deed. On their failure to comply with their part of agreement, respondent filed instant suit wherein he also questioned the cancellation of sale agreement besides other reliefs and expressed his willingness to make payment subject to delivery of possession of the apartment and execution of sale deed. Record of the case would further reflect that the appellants don’t have any defence much less plausible except non-payment of balance amount by the respondent within the due date and reiterated the stance of delivery of possession of the apartment on “as is where is basis”. This defence on the very face of it appears to be baseless and unjustifiable. Unless specifically agreed upon between the parties due to some compelling reasons, a person of sound mind can in no way on the basis of the sub clauseaccept an incomplete structure without utilities, although same are undertaken in the agreement. In the given circumstances, we cannot agree with stance of the appellants regarding the date fixed for performance of contract to be a date essence of contract. CA.1355/2006 etc 17 Mere mention of date in an agreement per se cannot be considered to be a date essence of contact. It is a settled principle of law that facts and circumstance of each and every case would be determinative factor to hold as to whether time is essence of contract or not. We in the given circumstances cannot agree with appellants. Here in this case conduct of the appellants is the most important factor to determine the fate of the case. It is an admitted fact on the record that the appellants initially had approval/permission from KBCA to raise construction of ground plus two floors which as per record was completed somewhere in 1995. Thereafter appellants started efforts to get permission to raise construction of 3rd floor. Again an admitted fact that prior to said approval/permission they had started construction of 3rd floor. They in this regard even filed a civil suit against KBCA in High Court and thereafter in the lower courts but both were dismissed. The respondent, in thecircumstances, having no other option, filed instant suit wherein he, after issuance of his legal notice dated 07.09.2001, once again expressed his willingness to pay/deposit the balance amount and asked for delivery of possession incomplete form alongwith execution of sale/sub- lease deed. It is worth to mention here that the suit apartment is still in that incomplete condition and the respondent on the directions of the court had deposited the balance amount in the court in 2006 which is still lying there. CA.1355/2006 etc 18 17. It is time and again held by this court that specific performance of a contract is essentially an equitable and discretionary relief and the court seized of the matter is in a better position to decide and resolve not simply according to the spirit of the law but also in accordance with the principles of substantial justice by keeping in mind peculiar facts and circumstance of each case. It cannot be claimed as a matter of right. The discretion to be exercised by the court requires that it should not be arbitrary but should be sound and reasonable guided by judicial principles and capable of correction by a court of appeal. Such an exercise of grant or refusal of relief would depend on the facts and circumstances of each case and also the conduct of the parties. This is the mandate of Section 22 of The Specific Relief Act, 1877. The same is reproduced for ready reference:- “22. Discretion as to decreeing specific performance:The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.” 18. The perusal of the above quoted provision of law clearly speaks the mandate of law. Learned counsel for the appellants placed reliance on the cases of Gulshan Hamid v. Abdul Rehman (2010 SCRM 334), Muhammad Ibqal v. CA.1355/2006 etc 19 MehboobAlam (2015 SCMR 21), Muhammad AbdurRehmanQureshi v. Sagheer Ahmad (2017 SCMR 1696). A perusal of these judgments would reveal that the same cannot be made applicable to the peculiar facts and circumstances of the case in hand. Similarly the case ofArshadHussain v. ZenatunNisa (2017 SCMR 608) is also not applicable being altogether a case of different facts and law. 19. A look at the entire record of the case would make it abundantly clear that here in this case the vendee/respondent was cheated and defrauded by concealing the factum of non- approval/sanction from KBCA for illegal construction of 3rd floor where the suit apartment is situated. Though the appellants have tried to make out a case that the said non-approval/sanction from KBCA was brought into the knowledge/notice of the respondent and thereafter the respondent entered into an agreement of sale. This stance of the appellants does not get support from record of the case. Even the sale agreement is silent in this regard. Respondent might have seen, as alleged, the construction being carried out on 3rd floor but that does not mean that he had knowledge of the above deficiency. Even at the time of sale agreement, both the suits of appellants against KBCA for seeking approval were dismissed. This was a fact so important that this should have been brought into the notice of respondent in clear and unequivocal terms. Because grey CA.1355/2006 etc 20 structure was there but permission/sanction of the concerned authority was not there. So, in such a risky state of affairs, knowledge and notice of respondent in something black and white was must. Thereafter it would have been his open choice to go for agreement to sell or not. At least there should have been a clause in the sale agreement that sale deed or possession would be delivered after getting proper approval of the entire 3rd floor or anything like that. But there is nothing of the sort. To the good luck of the respondent that the said approval of 3rd floor by the KBCA was accorded on 25.02.2003, much after the institution of present suit otherwise his already deposited amount of Rs.1.5 million would have been at risk. Had the appellants have bona fide intention, aftergetting approval, they could have asked the respondent that remaining work of the apartment would be completed by them and by the time he should make payment of balance amount but they continued with the contest and have dragged him for almost two decades when Rs.1.5 million were already paid in 2001 and remaining balance Rs.6,50,000/- was deposited on the orders of the court in the year 2006. The respondent in his plaint has asked for damages and costs of suit etc but the record would reveal that there was no such evidence brought by the respondent. In such like situations actual loss and damages cannot be calculated rather principle of rule of thumb is applied. We think this aspect should have been considered by the High Court (in trial and then in appeal).We, in CA.1355/2006 etc 21 the circumstances,would not like to grant such relief to respondent at this stage but would dismiss both the appeals with costs of Rs.3,00,000/- (three lac) for false and vexatious defense and wasting the time of courts. This amount of costs be recovered/paid to the respondent from the balance amount of Rs.6,50,000/-lying with the court and the remaining i.e. Rs.3,50,000/- can be withdrawn by the appellants. Judge Judge Judge Announced at Islamabad on _______________ Judge “APPROVED FOR REPORTING” ‘Sarfraz/’-

{'id': 'C.A.1355_2006.pdf', 'url': ''}

{'id': 'C.A.1355_2006.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE MUSHIR ALAM MR. JUSTICE MAQBOOL BAQAR CIVIL APPEAL NOS.1359 TO 1363 OF 2014 (On appeal from the judgment dated 24.4.2014 of the Peshawar High Court, Abbottabad Bench passed in Writ Petitions No.276-A to 280-A/2014) Pir Imran Sajid …in C.A.1359/2014 Muhammad Saeed …in C.A.1360/2014 Muhammad Sajid Fariq …in C.A.1361/2014 Khaliq-ur-Rehman …in C.A.1362/2014 Atif Ali …in C.A.1363/2014 …Appellants VERSUS Managing Director/General Manager (Manager Finance), Telephone Industries of Pakistan and others …Respondents (in all cases) … For the appellants: Hafiz S. A. Rehman, Sr. ASC Syed Rifaqat Hussain Shah, AOR For the respondents: Mr. Abdul Rehman Qadar, ASC Mr. Ahmed Nawaz Ch., AOR Date of hearing: 18.5.2015 … ORDER MAQBOOL BAQAR, J.- Leave to appeal in the above cases was granted by this Court, inter alia, to “examine whether despite the petitioners having remained in continuous service of the respondents for a period of one decade as contract employees, no vested rights were created in their favour for grant of relief of their regularization as laid down in the case of Province of Punjab v. Ahmad Hussain (2013 SCMR 1547).” 2. Relevant facts of the case, in brief, are that appellants in all the above appeals, except in CA No.1360 of 2014, were appointed in CA 1359-1363/14 -: 2 :- the Telephone Industries of Pakistan (“TIP”) in various junior positions, in the year 2003, through due process and pursuant to the advertisements for such vacancies in a national newspaper, whereas the appellant in CA 1360 of 2014 was so appointed in the year 1992. Initially, all the appellants were appointed on a contract for one year, however, such appointment/employment was extended on year to year basis. Admittedly, ‘TIP’ a private limited company, is wholly owned, controlled, managed, and financed by the federal government. 3. According to the appellants, their repeated requests for regularization did not find favour with the management of the company. Looking to the plight of the appellants and other contract/daily wages employees of TIP and various other ministries/ divisions/ attached departments/ autonomous bodies/ organizations etc., a cabinet sub-committee on regularization of such employees, under the directives of the Prime Minister of Pakistan, held a meeting on 21.2.2013, and after considering the recommendations of the Ministry of Information and Technology, under which ministry TIP functions, and after due deliberations, approved the regularization of 773 contract and 109 daily wages employees of TIP, subject to availability of posts and fulfillment of recruitment criteria. Names of the appellants appear at the 9th page of the minutes of the meeting, (page 59 of the paper book). A copy of such minutes was forwarded by the Ministry of Information and Technology to the Managing Director TIP, for implementation, through letter dated 6.3.2013. Through Office Memorandum dated 05.6.2013, the said ministry requested the Managing Director TIP for regularization of the aforesaid 882 employees in terms of the decision of the cabinet sub-committee, and also to submit a comprehensive plan for revitalization of TIP as CA 1359-1363/14 -: 3 :- directed by the Priority Committee. However, MD TIP did not heed to the above and to the repeated requests made by the appellants for their regularization, from time to time. The appellants were thus constrained to file writ petitions before the learned Peshawar High Court. The petitions were, however, dismissed through the impugned order. 4. At the very outset the learned counsel for the respondents submitted that the learned Peshawar High Court has rightly dismissed the petitions for the reasons; firstly that TIP is a private limited company, with no statutory service rules, and secondly that the appellants were contract employees. He, however, conceded that TIP is wholly owned, controlled, managed and financed by the federal government and is performing functions in furtherance of the affairs of the federation. 5. Keeping in view such status of the company, and the “Function Test” as prescribed and applied by a five member Bench of this Court in the case of Abdul Wahab and others v. HBL and others (2013 SCMR 1383), authored by one of us (Mian Saqib Nisar, J.), which test/criterion is fully meet in the present case, the status of TIP could not prevent the appellants from seeking constitutional remedy as the company clearly falls within the definition of a “person” as envisaged by Article 199 of the Constitution. The learned counsel for the respondents, in support of his second objection i.e. lack of statutory service rules, relied upon the judgment in the case of Fakhr- ur-Islam Qureshi (Civil Appeal No.424 of 2009), authored by one of us (Mian Saqib Nisar, J.), whereby the said appeal was dismissed on the ground that relationship between the appellant, retired employee and TIP is not governed by statutory rules. Such reliance, in our view, is CA 1359-1363/14 -: 4 :- wholly mis-placed for the reason, that unlike in the present case the appellants therein were seeking pensionary benefits on the basis of pensionary rules, which rules were non-statutory. Whereas in the present case, the appellants are seeking implementation of the directive of the Prime Minister of Pakistan and the decision of the cabinet sub-committee for their regularization sought to be enforced by the relevant ministry. 6. Admittedly, all the appellants have been serving TIP in their respective position since about last more than twelve (12) years, though on contract basis, however, renewal of their contracts on year to year basis since the inception clearly shows that the nature of their jobs/duties is permanent and not casual or temporary, and that the appellants have been performing their functions/duties to the satisfaction of their employer and further that throughout the whole period their services were required, and have remained useful for and beneficial to the organization. There is no allegation of any misconduct or incompetence against the appellants, rather they have been granted increments from time to time. It has also not been, and indeed, in the facts and the circumstances of the case, could not have been, claimed that the posts held by the appellants and the work carried out by them was of a temporary nature. On record, are letters which show that services of some of those employed on temporary/contract basis have been regularized by the TIP from time to time. 7. In the case of Province of Punjab v. Ahmad Hussain (2013 SCMR 1547), cited in the leave granting order in the present case, the respondent/employee (Ahmed Hussain) was working as storekeeper with the PWD Department on work charge basis for more than 14 years, the authority was, however, reluctant to regularize his services, CA 1359-1363/14 -: 5 :- though some of his colleagues were regularized, this Court, whilst referring to the judgments in the cases of Province of Punjab v. Gul Hassan (1992 PLC 924), Punjab Seed Corporation v. Punjab Labour Appellate Tribunal (1996 SCMR 1947), Executive Engineer v. Abdul Aziz (PLD 1996 SC 610) and Secretary, Irrigation and Power Department Government of Punjab v. Mohammad Akhtar (2009 SCMR 320), was pleased to uphold the judgment of the learned Lahore High Court, whereby an order of a single bench for regularization of the services of the employee (Ahmed Hussain) was upheld. The relevant portion of which judgment may be beneficial and is reproduced hereunder:- “(6) The job of respondent was that of storekeeper. The respondent keeps on keeping the store which has not ceased to exist. The job of a Storekeeper, Plumber, Electrician, Carpenter and Sweeper etc. are permanent jobs by their nature. These services as long the Punjab House at Islamabad exists, are needed by the department and the occupiers of the promises. These services are not to be performed for a day or a couple of days and then to be dispensed with. These services are needed as long the building department exists. It can safely be said that the nature of the jobs is permanent. The respondent employed in the year 1998 and fellow employees having been employed from almost the same time, have been performing their respective duties incessantly. These posts and the duties can by no stretch of imagination be taken to be of temporary nature. The length of the respondent’s service indicates and hints at the permanence of the posts. Even the work charge, casual and daily-wages workers, on account of the long continuation in service earn a presumption of regular need of their service obliging the authority to consider with a positive mind the necessity of the regularization of their service. It was so held by the august Supreme Court of Pakistan in (1996 SCMR 1947). The Federal Service Tribunal in Appeal No. 529(L)(C.S/2004) held that those continuously in service for more than 90 days in a Calendar year had attained the status of permanent workman by operation of the West Pakistan Standing Orders Ordinance, 1968, this decision was upheld by the Hon’ble Supreme Court of Pakistan in C.P. No. 1862-L of 2005. The impugned judgment passed by the learned Single Judge of this Court is in consonance with law. This appeal has no merit. It is hereby dismissed.” CA 1359-1363/14 -: 6 :- 8. In addition to the benefit of the above dictum, we may observe here that TIP’s non-compliance, rather defiance of the decision of the cabinet sub-committee to regularize the services of the appellants, and not heeding to the directive of their Ministry to comply with said decision, compliance whereof is being sought by the appellants, is wholly illegal and malafide. Even otherwise, since as noted earlier, the retention of the appellants by TIP for a period of more than 12 years and repeated renewal of their contracts of employment, clearly show that the posts/positions held by the appellants were/are of permanent nature which were essentially required by TIP for its functioning and that repeated renewal of the appellants’ contracts and the increments granted to them show also, that the appellants have been discharging their duties to the satisfaction of their employer and therefore, employing/retaining the appellants on contract, instead on permanent basis was/is wholly malafide, whimsical and unfair. Such practice/conduct has also been deprecated through judicial pronouncements. The appellants have rendered prime time of their life in serving TIP and in the process may now have become overage for any other suitable employment. 9. It is now well established that right to life as envisaged by Article 9 of the Constitution, includes the right to livelihood and as laid down in the case of Abdul Wahab (supra), the “right to livelihood, therefore, cannot hang on to the fancies of individuals in authority.” Certainly, as has further been held in the said judgment; “it shall unmistakably be permissible that the employment of an employee can be brought to an end, but obviously in accordance with law”, whereas in the present case, and as observed earlier, there was/is no justification for not making their employment permanent, and for CA 1359-1363/14 -: 7 :- keeping their entire career, rather livelihood exposed and susceptible to the whims of the authorities, which also hurts the dignity of the appellants. 10. Indeed the service/employment rules of TIP are non statutory, but such does not prevent the appellants from seeking implementation of the decision/order of the Federal Government/ ministry for their regularization. 11. It hardly needs to be emphasized that the whole edifice of governance of the society has it genesis in the Constitution and laws aimed at to establish an order, inter alia, ensuring the provisions of socio-economic justice, so that the people may have guarantee and sense of being treated in accordance with law that they are not being deprived of their due rights. Provision of Article 4 embodies the concept of equality before law and equal protection of law and save citizens from arbitrary/discriminatory law and actions by the Governmental authorities. Article 5(2) commands that every body is bound to obey the command of the constitution1. Every public functionary is supposed to function in good faith, honestly and within the precincts of its power so that persons concerned should be treated in accordance with law as guaranteed by Article 4 of the Constitution. It would include principles of natural justice, procedural fairness and procedural propriety2. The action which is malafide or colourable is not regarded as action in accordance with law. While discharging official functions, efforts should be made to ensure that no one is prevented from earning his livelihood because of unfair and discriminatory act on their part. 1 PLJ 2007 SC 32 2 PLD 1999 SC 1026 CA 1359-1363/14 -: 8 :- 12. It is now well laid down that the object of good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily and without application of mind but objective can be achieved by following the rules of justness, fairness, and openness in consonance with the command of the Constitution enshrined in different articles including Articles 4 and 25. The obligation to act fairly on the part of the administrative authority has been evolved to ensure the rule of law and to prevent failure of the justice. 13. Looking through the above constitutional prism and keeping in view the facts that the federal government which owns, controls, manages and finances TIP has directed TIP to regularize the appellants, and that admittedly the appellants have initially been appointed in an open and transparent manner and after the vacancies were advertised in the newspapers, one cannot escape the conclusion that the appellants ought to have been regularized. 14. The appeals are, therefore, allowed. The services of the appellants be regularized from the date of decision of the Cabinet Sub- Committee for Regularization. JUDGE JUDGE JUDGE Islamabad, the 18th May 2015 APPROVED FOR REPORTING Aamir Sh./

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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 APPEAL NO.1399 OF 2019 (On appeal against the judgment dated 12.08.2016 of the Lahore High Court, Multan Bench, Multan passed in W.P.No.136 of 2015) Shamona Badshah Qaisarani …Appellant(s) VERSUS Election Tribunal, Multan etc. …Respondent(s) For the Appellant(s): Mr. Muhammad Shahzad Shaukat, ASC For Respondent No.3: Barrister Umer Aslam, ASC Mr. Ahmed Nawaz Ch., AOR For the ECP: Mr. M. Arshad, D.G. (Law) Date of Hearing: 16.03.2021 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this appeal by leave of the Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the appellant has called in question the judgment dated 12.08.2016 passed by the Lahore High Court, Multan Bench, whereby while dismissing the constitution petition filed by her, the order of the Election Tribunal, Multan dated 01.01.2015 was upheld and the nomination papers to contest bye- elections in PP-240 Dera Ghazi Khan-I filed by the appellant were rejected. The said Tribunal also declared the appellant disqualified to contest elections under Article 62(1)(f) of the Constitution, which was also maintained by the learned High Court by upholding the same. 2. Briefly stated the facts of the matter are that appellant’s husband was the returned candidate in the general elections held in Civil Appeal No.1399 of 2019 2 2013 in the constituency PP-240, Dera Ghazi Khan-I but subsequently, he was disqualified on account of fake degree. In the bye-elections held on 07.10.2013, the appellant contested and won the elections by securing the highest votes. The respondent No. 3 Khawaja Muhammad Dawood Sulemani who had also contested the said elections, challenged the elections by filing Election Petition No. 13 of 2013 before the Election Tribunal, Bahawalpur & D.G. Khan Divisions on the ground of corrupt practices but it was dismissed vide order dated 19.11.2014. During the pendency of the said Election Petition, the respondent No. 3 also filed an application under Section 76-A of the Representation of the People Act, 1976 before the aforesaid Election Tribunal praying that the election of the appellant may be declared void as the declaration of assets made by her in the nomination papers were false, incorrect and against the record because she did not disclose a piece of agricultural land which was in her ownership. The Election Tribunal Bahawalpur accepted the application filed by the respondent No. 3, declared the bye-elections void, de-notified the appellant and ordered fresh elections in the constituency. The appellant challenged the said order before this Court but her appeal stood dismissed vide judgment dated 09.05.2016. Thereafter, again bye-elections were scheduled to be held on 17.01.2015. The appellant again submitted her nomination papers whereupon the respondent No. 3 raised objection that according to the findings of the Election Tribunal Bahawalpur dated 19.11.2014 passed in an application under Section 76-A of the Representation of the People Act, 1976, the appellant is not “Sadiq” and “Ameen” and is not entitled to contest the elections. However, the Returning Officer accepted the nomination papers of the appellant vide order dated 27.12.2014. The respondent No. 3 challenged the acceptance of nomination papers of the appellant before the Election Tribunal Multan by filing Election Petition No. 04 of 2014, which was allowed vide order dated 01.01.2015, the appellant’s nomination papers were rejected and on the basis of the order of the Election Tribunal Bahawalpur she was disqualified under Article 62(1)(f) of the Constitution. The appellant being aggrieved by the order of the Election Tribunal Multan, challenged it before the Lahore High Court, Multan Bench by Civil Appeal No.1399 of 2019 3 filing Writ Petition No. 136 of 2015 but it has been dismissed vide impugned judgment dated 12.08.2016. Hence, this appeal by leave of the Court. 3. Learned counsel for the appellant inter alia contended that the appellant could not have been disqualified under Article 62(1)(f) of the Constitution because the declaration that she was non-sagacious, non-profligate, non-righteous etc was not granted after affording her proper opportunity to defend her case; that even the Tribunal is not a forum to issue a declaration without recording of evidence in this regard after provision of the right of due process and the same is based on surmises and conjectures; that even otherwise the act of the appellant of not mentioning the agricultural property inherited from her parents in the nomination papers was neither a dishonest act nor was a deliberate concealment to gain certain benefits/advantage; that this Court in the recent judgments has held that unless there is a dishonest intent behind concealment of an asset, one cannot be punished for life if he had made an innocent error; that non-mentioning of the assets in the nomination papers could have become fatal, if the omission would have been with the purpose to avoid payment of tax or other state dues etc, therefore, in view of the law laid down by this Court, the appellant could not have been permanently disqualified under Article 62(1)(f) of the Constitution. 4. On the other hand, learned counsel for the respondent No. 3 controverted the arguments advanced by the learned counsel for the appellant by submitting inter alia that the agricultural property was deliberately not mentioned by the appellant in her nomination papers; that this fact was believed by the Election Tribunal Bahawalpur in its judgment dated 19.11.2014 passed in an application in Election Petition No. 13/2013 under Section 76-A of Representation of People Act, 1976 after affording her ample opportunity to put up her case; that the judgment of the Tribunal was upheld by this Court, therefore, it cannot be said that the declaration to disqualify the appellant was based on surmises and conjectures. 5. We have heard learned counsel for the parties and have perused the relevant record as also the relevant law. Civil Appeal No.1399 of 2019 4 6. After hearing the arguments advanced by the learned counsel for the parties, the issues which crop up for our consideration are whether the omission of the appellant of non- mentioning the agricultural property inherited from her parents was sufficient enough to disqualify her permanently, and whether the declaration of disqualifying the appellant in terms of Article 62(1)(f) of the Constitution was based on proper scrutiny of the evidence evaluated by a court of competent jurisdiction and in accordance with the law laid down by this Court. 7. It is now a well settled principle that every non- disclosure or mis-declaration would not be sufficient enough to permanently disqualify a member of the Parliament or a candidate. The purpose and intention needs to be seen behind the non- disclosure or mis-declaration. The returned candidate would be disqualified only when if he/she has dishonestly acquired assets and is hiding them to derive certain benefits. If the non-disclosure or mis-declaration is such that it gives an illegal advantage to a candidate then it would lead to termination of his candidature. This Court in the case of Khawaja Muhammad Asif Vs. Muhammad Usman Dar (2018 SCMR 2128) has candidly held that merely the fact that a candidate has not declared an asset in the nomination papers would not end in his disqualification but it has to be seen whether the act of non-disclosure of the asset is with dishonest intent or not and only if there is dishonest intent behind the non- disclosure, the candidate would be disqualified. It is the credibility of the explanation that would be the determining factor as to whether non-disclosure of an asset carries with it the element of dishonesty or not. It would be advantageous to reproduce the relevant portion of the judgment, which reads as under:- “9. While considering a case of dishonesty in judicial proceedings what should not be lost sight of is that on account of inadvertence or honest omission on the part of a contesting candidate a legitimately acquired asset is not declared. This may happen as an honest person may perceive something to be right about which he may be wrong and such perception cannot necessarily render him dishonest though the omission would invariably result in rejection of his nomination paper had such a fact is pointed out to the Returning Officer at the time of scrutiny of nomination papers or in proceedings available under the election laws. There are many conceivable instances where an omission to Civil Appeal No.1399 of 2019 5 declare an asset on the face of it cannot be regarded as dishonest concealment. For example, where an inherited property is not declared on account of mistake of fact or an asset acquired from a legitimate source of income is not listed in the nomination paper. Suchlike omissions at best could be categorized as bad judgment or negligence but certainly not dishonesty. As mentioned earlier even the proviso to section 14(3)(d) of RoPA envisaged that rejection of a nomination paper on account of failure to meet the requirements of section 12 of RoPA would not prevent a candidate to contest election on the basis of another validly filed nomination paper. Hence mere omission to list an asset cannot be labeled as dishonesty unless some wrongdoing is associated with its acquisition or retention which is duly established in judicial proceedings. In our view attributing dishonesty to every omission to disclose an asset and disqualify a member for life could never have been the intention of the parliament while incorporating Article 62(1)(f) in the Constitution. All non-disclosures of assets cannot be looked at with the same eye. In our view no set formula can be fixed with regard to every omission to list an asset in the nomination paper and make a declaration of dishonesty and impose the penalty of lifetime disqualification. In a judgment from the foreign jurisdiction in the case of Aguilar v. Office of Ombudsman decided on 26.02.2014 by the Supreme Court of Philippines (G.R. 197307) it was held that dishonesty is not simply bad judgment or negligence but is a question of intention. There has to exist an element of bad intention with regard to an undeclared asset before it is described as dishonest. Unless dishonesty is established in appropriate judicial proceedings, Article 62(1)(f) of the Constitution cannot be invoked to disqualify an elected member for life. 10. Where a matter with regard to an undisclosed asset is taken to court, it would not form the opinion that it is a case of dishonest concealment without first calling upon the elected member to explain the source from which such an asset was acquired. Where no satisfactory explanation is forthcoming and the undeclared asset also does not commensurate with the elected member's known sources of income, it would give rise to the presumption that unlawful means may have been applied with regard to such an asset. It is the credibility of the explanation that would be the determining factor as to whether non-disclosure of an asset carries with it the element of dishonesty or not. The test of honesty with regard to non-disclosure of assets and liabilities is to be applied in that context only and certainly not in a case where a clean asset has not been declared on account of bad judgment or inadvertent omission. In the impugned judgment, the learned High Court itself was conscious of the fact that where there is a case of non- disclosure of an asset the same ipso facto does not render a person to be dishonest. In this regard, a judgment of this Court cited by respondent No. 1's counsel in the case of Rai Hassan Nawaz v. Haji Muhammad Ayub (PLD 2017 SC 70) was referred where it was held as follows:- "8. We, therefore, observe that any plausible explanation that exonerates, inter alia, mis- declaration of assets and liabilities by a contesting Civil Appeal No.1399 of 2019 6 candidate should be confined to unintended and minor errors that do not confer any tangible benefit or advantage upon an elected or contesting candidate. Where assets, liabilities, earnings and income of an elected or contesting candidate are camouflaged or concealed by resort to different legal devices including benami, trustee, nominee, etc. arrangements for constituting holders of title, it would be appropriate for a learned Election Tribunal to probe whether the beneficial interest in such assets or income resides in the elected or contesting candidate in order to ascertain if his false or incorrect statement of declaration under section 12(2) of the ROPA is intentional or otherwise. This view finds support from the statutory aim and purpose of requiring all contesting candidates to file their statements and declarations as envisaged in section 12(2) of the ROPA. Clearly there is a public interest object behind the statutory prescription for obtaining the said statements and declaration. It is to ensure integrity and probity of contesting candidates and therefore all legislators." (Underlined to lay emphasis) 8. In the case of Shakeel Awan Vs. Sheikh Rasheed Ahmed (PLD 2018 SC 643) the appellant had sought disqualification of the respondent on the ground that the returned candidate/respondent has deliberately concealed certain agricultural land in his nomination papers; has declared his land holding to be 983 Kanals 17 Marlas while it has been established on record that the respondent owned 1049 Kanals and 13 Marlas and also not correctly disclosed the market value of certain immovable property. This Court while dismissing the appeal held that in cases where the non-disclosure or misdeclaration gives an illegal advantage to a candidate then such non-disclosure or misdeclaration would terminate his candidature, and if he has been elected to his disqualification and consequent removal but the misdeclaration made by the respondent apparently did not offend any law, in that if he had disclosed his entire land holding and had shown the value of the said house to be forty eight million rupees he would still be able to contest the elections. In Muhammad Hanif Abbasi Vs. Imran Khan Niazi (PLD 2018 SC 189), Faisal Arab, J, as he then was, while agreeing with the majority view observed that there can be many examples where it can be safely said that an omission on the face of it is not dishonest. Omission to list an Civil Appeal No.1399 of 2019 7 inherited property or the pensionary benefits received by one's spouse or the plot allotted by the government in acknowledgment of services rendered are some of the instances which cannot be said that a member intentionally concealed its disclosure in order to cover some financial wrongdoing. Suchlike omissions at best could be categorized as bad judgment or negligence but not dishonesty. In Murad Bux Vs. Kareem Bux (2016 SCMR 2042), the petitioner in the nomination papers filed for contesting local council election had failed to disclose that a criminal case is pending against him, which on objection raised by the respondent, led to rejection of his nomination papers. However, this Court allowed the petition by holding that where the explanation of a party contesting the election is plausible in regard to non-disclosure of any fact in the affidavit, it cannot be denied the right to contest for elections and that the non- disclosure of a fact which otherwise, if disclosed, could not debar the Petitioner from contesting the election, cannot be made a ground to preclude the Petitioner from contesting the election. 9. In view of what has been discussed above, before disqualifying the appellant, the learned fora below ought to have established whether the act of the appellant of non-mentioning of landed property was a dishonest act with a view to gain some benefits i.e. to evade tax payment etc or the property was acquired later on after elections by using corrupt practices etc. However, we have noted that the learned fora below have made no effort to ascertain these aspects of the matter. The learned Election Tribunal Multan while disqualifying the appellant vide judgment dated 01.01.2015 only made basis to the earlier order passed by the Election Tribunal Bahawalpur dated 19.11.2014 in an application filed by the respondent No. 3 under Section 76-A of the Representation of the People Act, 1976. Under Section 76-A, the Election Tribunal can declare the election of the returned candidate void or declare any other contesting candidate to have been duly elected and nothing else. In those proceedings, the stance of the appellant was that the property was inherited from her parents, which has been transferred to her brothers and in this regard the “Tamleek Nama” has been executed on 04.07.2013. The learned Election Tribunal Bahawalpur vide order dated 19.11.2014 de- Civil Appeal No.1399 of 2019 8 seated the appellant mainly on the ground that as the bye-elections were to be held on 07.10.2013, therefore, she was to declare her assets on the preceding 30th of June i.e. 30.06.2013 and as the “Tamleek Nama” was executed after the cutoff date i.e. 30.06.2013, therefore, it was held that she ought to have mentioned the agricultural property. However, in this order, the learned Election Tribunal had admitted the fact that the property was legitimate as it was inherited from her parents vide duly attested mutations. This judgment was upheld by this Court and thereafter, again bye- elections were scheduled to be held on 17.01.2015. For the second bye-elections to be held on 17.01.2015 the appellant filed nomination papers, which were objected to by the respondent No. 3 on the basis of the order of the Election Tribunal Bahawalpur dated 19.11.2014 but these were accepted. It was in the appeal before the Election Tribunal Multan against acceptance of nomination papers of the appellant for the second bye-election that the Election Tribunal Multan for the first time while relying on the order of the Election Tribunal Bahawalpur dated 19.11.2014 disqualified the appellant but failed to take into consideration that in the order of the Election Tribunal Bahawalpur, there was nothing mentioned about disqualification of the appellant and the earlier bye-election was only declared void by holding that the appellant ought to have mentioned about the property which was in her possession before the cutoff date i.e. 30.06.2013 and as the “Tamleek Nama” was executed on 04.07.2013 after the cutoff date, therefore, it was not taken into consideration. No wrongdoing was associated with the acquisition of the property or its retention, therefore, in view of the law laid down by this Court referred above, the act of non- mentioning of the property could not have been termed as dishonest act, rather it could only be termed as bad judgment or negligence but certainly not dishonesty. This Court in Muhammad Siddique Baloch Vs. Jehangir Khan Tareen (PLD 2016 SC 97) has held that in cases involving a finding of fact about the disqualification of a returned candidate in election matters, such finding must be based on affirmative evidence and not on presumptions, inferences and surmises. It would be in order to reproduce the relevant portion of the said judgment, which reads as under:- Civil Appeal No.1399 of 2019 9 “29. At this juncture, it is important to emphasize that in cases involving a finding of fact about the disqualification of a returned candidate in election matters, such finding must be based on affirmative evidence and not on presumptions, inferences and surmises. That does not mean that proceedings in an election petition before an Election Tribunal are strictly criminal proceedings. It is settled law that even in civil proceedings, a finding of fact must be based on positive and affirmative evidence. This requirement rests in the basic principles of the Qanun-e-Shahadat Order, 1984 and is articulated in Allah Din v. Habib (PLD 1982 SC 465). For that reason and the serious consequences that follow a finding of disqualification under Article 62(1)(f) of the Constitution, an additional evidentiary safeguard is adopted by the Court, namely, that any reasonable hypothesis available in the recorded evidence to avoid the disqualification of the returned candidate ought to be adopted by the Court of law. The foregoing safeguards have already been laid down in relation to the proof of corrupt practice by a candidate in an election. Section 78(3)(d) of the ROPA treats a false statement by a candidate about his educational qualification to be a corrupt practice. 30. The earliest pronouncement on this subject is rendered by this Court in Muhammad Saeed's case (PLD 1957 SC 91), wherein it is held that: "... the burden of proof of corrupt practices is on the petitioner; that the evidence of proof of such practices must be restricted to the charges or instances mentioned in the petition and the particular; that each ingredient of a corrupt practice so charged must be affirmatively proved by evidence, direct or circumstantial; and that where the evidence is wholly circumstantial, the commissioners before finding a corrupt practice proved must exclude all reasonable hypotheses which are consistent with that corrupt practice having not been committed... ." 31. A case directly pertaining to disqualification of a returned candidate was heard by this Court in Mohammad Yusuf's case (PLD 1973 SC 160) wherein whilst adopting the view taken in Muhammad Saeed's case (PLD 1957 SC 91) this Court has observed that finding of disqualification must be based on positive evidence and should not be rendered inferentially on mere surmises; that since a disqualification was penal in nature, therefore, the terms thereof were subject to strict interpretation; and the benefit of doubt was to be extended in favour of a returned candidate. The later judgments of this Court rendered in Saeed Hassan's case (PLD 1976 SC 6) and Muhammad Afzal's case (1986 SCMR 1736) approve the principles enunciated in the afore-noted two judgments.” (Underlined to lay emphasis) Civil Appeal No.1399 of 2019 10 10. In the case of Allah Dino Khan Bhayo Vs. Election Commission of Pakistan (PLD 2020 SC 591), this Court has held as follows:- “5. The upshot of the said judgment is that a disqualification under Article 62(1)(f) of the Constitution can only be imposed by or under a declaration made by a court of law. By such prescription Article 62(1)(f) creates a lawful, transparent and fair mechanism for an election candidate to contest an allegation that he is disqualified under one or more of the grounds listed in the said Constitutional provision. Accordingly, in the case reported as Sardar Yar Muhammad Rind v. Election Tribunal Balochistan, Quetta and others (PLD 2020 SC 137) this Court held that a judicial declaration disqualifying a candidate under Article 62(1)(f) of the Constitution must necessarily be based on oral or documentary evidence. In the case reported as Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif (PLD 2017 SC 265), the learned Judge speaking for the majority elaborated that even an Election Tribunal can only disqualify a candidate when its declaration is issued on the basis of evidence before it. Such a requirement is implicit in Article 10A of the Constitution which makes both due process and fair trial a fundamental right in lawful judicial proceedings. Thus the determination of a dispute relating to a right or liability, the recording of evidence including the right of cross- examination, a hearing of the arguments of the parties and a reasoned judgment are essential attributes of a court of law (ref: Tariq Transport Co., Lahore v. Sargodha Bhera Bus Service (PLD 1958 SC (Pak) 437) and Mollah Ejahar Ali v. Government of East Pakistan (PLD 1970 SC 173). 11. It is well-settled that no man should suffer because of the fault of the court. There is an old maxim ‘actus curiae neminem gravabit’, which means that an act of court shall prejudice no man and the same becomes applicable in the present case as the learned fora below were under obligation to do justice with the appellant. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. In a case, where any undeserved or unfair advantage has been given to a party invoking the jurisdiction of the court (the respondent No. 3 in the present case) and the same requires to be neutralized, the said maxim is to be made applicable. 12. For what has been discussed above, we are of the view that the learned Election Tribunal Multan disqualified the appellant in a slipshod manner. The act of the appellant at best could be termed as bad judgment or negligence and as the property was legitimately acquired through inheritance, the same could not be Civil Appeal No.1399 of 2019 11 labeled as acquired through dishonest means. For this negligence, she could not be disqualified for life. Consequently, this appeal is allowed and the impugned judgment is set aside. 13. The above are the detailed reasons of our short order of even date. JUDGE JUDGE JUDGE Islamabad, the 16th of March, 2021 Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN. MR. JUSTICE QAZI FAEZ ISA. CIVIL APPEALS NOs. 139 to 144 of 2013 AND CIVIL PETITION NO. 1384 of 2011. (On appeal against the judgment dated 21.01.2009 of the Islamabad High Court, Islamabad passed in FAO Nos. 7, 11 & 13 of 2008 and WP Nos.705,706,741,763 and 1526 of 2008) World Call Telecom Ltd thr. its Chief Executive Officer. (in CAs. 139-140/13). Wi-Tribe Ltd. Pakistan Ltd. thr. its Director. (in CA. 141/13) Telecard Ltd. World Trade Center thr. its Director. (in CA.142/13) DV com Limited. (in CA.143/13) Telecard Limited. (in CA.144/13) M/s Dancom Pakistan (Pvt) Limited. (in CP.1384/11) …Appellants/Petitioner. Versus Pakistan Telecommunication Authority (PTA) thr. its Chairman. (in CAs. 139, 140, 143 and 144/13) Federation of Pakistan thr. Secy. Information Technology, etc. (in CAs. 141-142/13 and CP. 1384/11) …Respondents For the appellants/petitioners: Mr. Khalid Anwar, Sr. ASC. Mr. M. Ali Raza, ASC. C. A. Nos. 139 to144 of 2013 and C.P. No.1384 of 2011 2 Mr. Shahzad Shoukat, ASC Kh. Ahmed Tariq Rahim, ASC Mr. Afnan Karim Kundi, ASC Raja Abdul Ghafoor, AOR. Mr. Tariq Aziz, AOR. Syed Safdar Hussain AOR. For the respondents: Ch. Aamir Rehman, Addl. A. G. Mr. Waseem Sajjad, Sr. ASC. Mr. M. Ikram Ch., Sr. ASC. Mr. Azid Nafees, ASC. (For PTCL) Mr. Asim Hafeez, ASC Sardar M. Aslam, ASC. Mr. Shamshadullah Cheema, ASC (For FAB) Mr. M. S. Khattak AOR. Mr. Waseem Anwar, A. D. Law (PTA) Mr. M. Khurram Siddiqui, Dir. Law. (PTA) Mr. Bilal Afzal Khokhar, Consultant, PTA. Syed Sibt-e-Hassan Gardezi, AGM (Law), USF. Mr. Nasir Ayyaz, Director, Legal, M/o IT. Mr. Arif Sargana, Director (C.A.) Law, M/o IT Ms. Ameena Sohail, Member (Legal), M/o IT Dates of hearing: 16.4.2013, 17.04.2013, 06.05.2013, 23.05.2013, 18.9.2013, 23.9.2015, 12.10.2015, 13.10.2015, 15.10.2015, 26.10.2015, 04.11.2015 and 05.11.2015. (Judgment Reserved). J U D G M E N T EJAZ AFZAL KHAN, J.- Vires of Access Promotion Rules, 2004 was challenged on the grounds that they are outside the orbit of Section 57 of the Pakistan Telecommunication (Re-Organization) Act, 1996; that Access Promotion Contribution being insertion of Pakistan Telecommunication (Re-Organization) (Amendment) Act, 2006 (Act II of 2006) could not precede the amendment especially C. A. Nos. 139 to144 of 2013 and C.P. No.1384 of 2011 3 when the provision regulating it was also inserted in Section 4(k) through the above mentioned Amendment Act in 2006; that though the term Access Promotion Contribution was also defined by the Access Promotion Rules, 2004 but in the absence of any clear provision in the Act, it could not be exacted from the licencees; that Rules under Section 57 of the Act could be made for carrying out the purposes of the Act provided therein as the words “and where provided for herein before” clearly exclude what has not been provided by the Act; and that as the rules requiring payment of APC are ultra vires, no action could be taken against the appellants under Section 23 of the Pakistan Telecommunication (Re- Organization) Act, 1996 on account of their failure to pay APC. Even establishment of the USF, according to Mr. Ali Raza, ASC for appellants in Appeal No. 141 of 2013 which is required to be made by a notification in the Official Gazette under Section 33A of the Pakistan Telecommunication (Re-Organization) Act, 1996, cannot precede the insertion of the provision providing therefor, therefore, the USF exacted under the rules 2004 is also ultra vires. Functions and powers of the Authority have been listed in Section 4 and 5 of the Act respectively, therefore, performance of any other function or exercise of any other power according to the learned ASC shall be outside the scope of this Act. 2. Mr. Khalid Anwar, learned Sr. ASC appearing on behalf of the appellants in Appeals Nos. 139 to 140 of 2013 contended that the Authority did not have any power to levy fee, other charges and fix rates in respect of the services, before the passing of Pakistan Telecommunication (Re-organization) (Amendment Act), 2006, therefore, no amount in any form could be exacted from the C. A. Nos. 139 to144 of 2013 and C.P. No.1384 of 2011 4 appellants. Licence, the learned Sr. ASC contended, is subject to the terms and conditions of the Act, rules and regulations and that in the event of any conflict or inconsistency between the provisions of the lincence and provisions of the Act, rules or regulations, the latter shall prevail; that revenue could be shared from international calls, from LDI and LL licences according to the formulas specified by the Authority from time to time but it cannot remain static when the rates vary from time to time. The amount exacted in the form of APC for the USF cannot be spent anywhere but to promote the availability of a wide-range of high quality, efficient, cost-effective and competitive telecommunication services throughout Pakistan. The Federal Government, the learned Sr. ASC went on to argue is not always supposed to be on the receiving end as it is also required to credit sums mentioned in sub-Section 4 of Section 33A of the Act. The mainstay of the learned Sr. ASC was that Access Promotion Contribution could not be exacted just for the heck of it; that if it is a tax, it cannot be imposed without express provision of the statute and that in case it is a fee, some service should have been provided in lieu thereof; and that where it lacks the essential attributes of tax as well as fee it has no statutory foundation. The APC, the learned Sr. ASC maintained, could have been treated as a fee, had it been spent on the development of the infrastructure or on the welfare of the Contributors, but where it is not known where does it go and who spends it, not only proceedings against the petitioner under Section 23 of the Act be dropped but the amount received so far be restored to coffers it has come from. Another strange anomaly, the learned Sr. ASC argued, is that the Access Promotion Contribution has been made part of Federal consolidated fund vide notification C. A. Nos. 139 to144 of 2013 and C.P. No.1384 of 2011 5 dated 29.06.2013 which is not justified under any canons of law and the Constitution. Arguing further, the learned Sr. ASC contended that if the amount exacted from the appellants is shown to have been spent on the purpose it is exacted for a greater part of his grievance shall stand redressed but where it has neither been audited nor accounted for in accordance with the relevant provisions of the Act and the rules, its retention by the Federation would be absolutely unjustified. He next contended that even Approved Account Rates which are the main sources of APC for the USF are also prescribed without considering the grave ground realities with the result that the licensees instead of gaining anything out of the business are loosing even what they have invested. The learned Sr. ASC further argued that the learned Single Judge erred by construing the word “and” as disjunctive without considering the justification therefor; that such conversion is justified only when it leads to absurdity or gives rise to a conflict. The learned Sr. ASC to support his contentions placed reliance on the cases of C. E. Gibbon, Deputy Speaker, National Assembly. Vs. Pakistan (through the Secretary Ministry of Law, etc (PLD 1957 (W.P.) Karachi 956), Imtiaz Ahmed Lali. Vs. Ghulam Muhammad Lali (PLD 2007 S.C. 369) and Salehon and others. Vs. The State (PLD 1969 SC 267). He lastly argued that notification enforcing the USF issued under the Pakistan Telecommunication (Re- Organization) Amendment Ordinance, 2005 would die with the death of the Ordinance and cannot continue unless another notification in terms of Section 33A of the Act is issued by the Federal Government soon after the commencement of the Pakistan Telecommunication (Re-Organization) Amendment Act, 2006, notwithstanding the provisions contained in Article 264(b) of the C. A. Nos. 139 to144 of 2013 and C.P. No.1384 of 2011 6 Constitution. The learned ASC to support his contention placed reliance on the case of Government of Punjab through Secretary, Home Department. Vs. Zia Ullah Khan and 2 others (1992 SCMR 602). 3. The learned Sr. ASC appearing on behalf of the USF contended that licencee cannot provide any telecommunication service or system, establish, maintain or operate in telecommunication system unless authorized by the Authority; that grant of licence is subject to fulfillment of terms and conditions stipulated in the licence and that no person has any locus standi to enter the realm of telecommunication without a license. The learned Sr. ASC next contended, that the appellants whose existence in the field of telecommunication is on account of the licence would stand nowhere if the licence which has its origin in the draft Rules of 2004 is withdrawn. Though the Rules, the learned Sr. ASC maintained, were given legal attire in 2004 nevertheless they being in draft form were accepted as such at the time of grant of licence. The learned Sr. ASC next contended that though the definition of Access Promotion Contribution was inserted in the Act through the Amendment Act, 2006, but it was all along present in the rules framed under Section 57 of the Act. The learned Sr. ASC went on to argue that Access Promotion Rules, 2004 are fully covered by Section 57 of the Act, even if the word “and” used therein is read conjunctively. The learned Sr. ASC, however, conceded that APC for the USF exacted from the contributors cannot be made part of consolidated fund nor can it be used for a purpose not mentioned in the statute. The learned Sr. ASC next contended that appellants cannot approbate the terms and conditions of licence as well as the rules where they benefit them and reprobate the same where they bring them under C. A. Nos. 139 to144 of 2013 and C.P. No.1384 of 2011 7 some obligation. The learned Sr. ASC contended that Section 33A of the Act provides for issuance of a notification after the commencement of the amendment Act, 2006 but it does not mean that the notification issued under the provision of the Ordinance which is in para materia with the above mentioned provision would cease to have effect. Such notification, the learned Sr. ASC added, would continue under Article 264(b) of the Constitution. The learned Sr. ASC by concluding his argument contended that the efficacy or legitimacy of the terms and conditions of the licence or even the rules cannot be challenged at such a belated stage when the very establishment of the appellants in the field owes its origin and whole existence to the said terms and conditions as well as rules. 4. The learned Addl. A. G. appearing on behalf of the Federation contended that a great deal of the amount exacted through APC for the USF has been spent on the increase of teledensity, development of infrastructure and betterment of contributors, therefore, its restoration to the coffers it has come from is unthinkable. He, however, conceded that the amount exacted through APC for the USF could not be made a part of the Federal Consolidated Fund. He next contended that the appellants cannot take a U-turn to deny the whole dispensation when their presence in the field of telecommunication originated therefrom and one of them availed subsidies from the USF to the tune of 1.12 billion for different projects. 5. We have gone through the entire record carefully and considered the submissions of the learned Sr. ASCs and ASCs for the parties as well as learned Addl. A. G. for the Federation. C. A. Nos. 139 to144 of 2013 and C.P. No.1384 of 2011 8 6. The first and foremost question arising for consideration is as to what is the true meaning of the word “and” used in sub-Section (1) of Section 57 of the Act and whether Access Promotion Rules of 2004 can be held to have been enacted in accordance with the said Section of the Act. Before we deal with the arguments addressed at the Bar it is worthwhile to refer to Section 57 as it stood before amendment. It thus reads as under: "57. Power to make rules.__ (1) For carrying out the purposes of this Act [“and where provided for hereinbefore”], the Federal Government may, from time to time, by notification in the official Gazette, make rules not inconsistent with this Act. (2) Without prejudice to the foregoing powers, the Federal Government may make rules_ a) extending the categories of telecommunication systems or telecommunication services or which a licence is not required under Section 20; b) regulating the use of encryption apparatus or software by requiring use of approved apparatus or software or such appropriate apparatus or software be lodged with the Authority free of cost; and c) restricting or prohibiting the use of any public switched network for signaling purposes in circumstances in which charges otherwise payable may be avoided or reduced, or the advertising of means or services for such use.” 7. The above quoted provision in clear and unambiguous terms provides for rules making power of the Authority. The purpose behind making these rules is to carry out the purposes of this Act and “where provided for hereinbefore”. The word “and” as contended by the learned Sr. ASC for the appellants is conjunctive and has to be read as such. We agree that it is conjunctive and has to be read as such but still it does not support the deduction that the rules of C. A. Nos. 139 to144 of 2013 and C.P. No.1384 of 2011 9 2004 have been framed outside the scope of Section 57. The legislature by using the word “and” intended to include and encompass the rules framed for carrying out the purposes of the Act and the rules envisaged by Section 29(4) thereof. Given that the expression APC has been defined as the payment made by LDI licencees to LL Licencees or to the USF pursuant to the rules made under this Act, by 2(a) of the Act of 1996 which was inserted by the Amendment Act, 2006, but as is evident by the definition itself, it was already in existence and in force ever since 2004. It was in this context that the learned Sr. ASC for the appellant went to the extent of calling it inconsistent with the Act of 1996, but they cannot be held to be inconsistent on any account. It would have been inconsistent with the Act, had its levy been prohibited by the Act express and unequivocal terms. But when there is nothing in the Act prohibiting its levy, we don’t agree with the learned Sr. ASC for the appellants that the APC or the rules providing therefor are either ultra vires the Act or inconsistent therewith. The judgments rendered in the cases of C. E. Gibbon, Deputy Speaker, National Assembly. Vs. Pakistan (through the Secretary Ministry of Law, etc, Imtiaz Ahmed Lali. Vs. Ghulam Muhammad Lali and Salehon and others. Vs. The State (supra) are not relevant to the case in hand when by reading the word “and” as conjunctive the status of the rules remains much the same. Even if we assume for a while that rules were not in force at the time of grant of licence, it would not have much effect when even instructions contained in memoranda issued by the Government could be regarded as statutory in nature where they are expressed with precision and have been acted upon. Reference can well be made C. A. Nos. 139 to144 of 2013 and C.P. No.1384 of 2011 10 to the case of Faiz Ullah Khan. Vs. Government of Pakistan (PLD 1974 SC 291). 8. The argument that APC for the USF cannot be imposed even as a fee when no service is provided in lieu thereof, is absolutely devoid of force when a great deal of money so exacted is spent on the development of infrastructure, increase of teledensity and betterment of contributors which widen the gamut of their business and in turn bring them more and more profits. The argument that the Approved Account Rates which are the main sources of APC for the USF are not prescribed after taking stock of the dynamics in the international market of telecommunication is mere conjectural than real as nothing has been brought on the record to substantiate this argument. The argument that the fund exacted through APC for the USF has neither been audited nor accounted for in accordance with the relevant provisions of the Act and the rules has a lot of force in it but the instant litigation has not been initiated for the audit the amount so exacted. The argument that when it is not known as to where does the fund exacted through APC for the USF goes, proceedings against the appellants under Section 23 of the Act be dropped is also nothing but a subterfuge to cover up their failure to do what they are required to do under the terms and conditions of the licence, the rules and the Act. The argument that where establishment of the USF is required to be made by notification in the official gazette under Section 33-A of the Act, it cannot precede the insertion of the provision is also devoid of force when it was already established by a notification in the official gazette under Section 33- A of the Pakistan Telecommunication (Re-organization) C. A. Nos. 139 to144 of 2013 and C.P. No.1384 of 2011 11 (Amendment) Ordinance which continues as is clearly provided by Article 264(b) of the Constitution which reads as under:- “264. Effect of repeal of laws.—Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution,-- a) ……………………………… b) affect the previous operation of the law or anything duly done or suffered under the law; c) ……………………………… d) ……………………………… e) ……………………………… ………., as if the law had not been repealed.” The judgment rendered in the case of Government of Punjab through Secretary Home Department. Vs. Zia Ullah Khan and two others when read carefully does not support the contention of the learned Sr. ASC for the appellants. The argument that licence is subject to the terms and conditions of the Act, rules and regulations and that in the event of any conflict or inconsistency between the provisions of the licence and the provisions of the Act, rules and regulations, the latter shall prevail is, no doubt correct but we don’t think there is any conflict or inconsistency between the terms and conditions of the licence and the provisions of the Act or the rules and regulations made threreunder. The argument that functions and powers of the Authority have been listed in Sections 4 and 5 of the Act, therefore, performance of any other function or exercise of any other power shall be outside the scope of the Act is also devoid of force, when acts done, orders passed, rights acquired or liabilities incurred pursuant to the rules framed under Section 57 of the Act cannot be held to be outside the scope of the Act. The more so when we have C. A. Nos. 139 to144 of 2013 and C.P. No.1384 of 2011 12 observed above, that rules of 2004 are by no stretch of imagination inconsistent with the provisions of the Act. 9. We, however, don’t understand why do the appellants question the terms and conditions of the licences which emanate from the rules and why do they question the rules when they emanate from the provisions contained in Sections 20, 21, 23 and 24 of the Act. No person, in view of the provision contained in Section 20 of the Act, can establish, maintain or operate any telecommunication system or provide any telecommunication service unless he has obtained a licence under this Act. All the licences are granted by the Authority as it alone has the exclusive power to grant them under Section 21 of the Act on the terms and conditions enumerated therein. It is the Authority which, in view of the provision contained in Section 22 of the Act, has the power to modify a licence or its conditions with the consent of the licencee. Orders and penalties are also enforced by the Authority in view of the provision contained in Section 23 of the Act and again it is the Authority which wields the powers of Administrator under Section 24 of the Act. We don’t understand why do the appellants approbate the rules when they benefit them and reprobate them when they bring them under obligation. The appellants don’t understand that by questioning vires of the rules they not only embark on a self defeating exercise but hack the branch they are resting on when they minus the rules are just non-entity. Leaving apart the question of acquiescence or estoppel where one of the appellants availed subsidies from the USF to the tune of rupees 1.2 billion for different projects, it does not behove it to bite the hand that feeds it. C. A. Nos. 139 to144 of 2013 and C.P. No.1384 of 2011 13 10. The argument that the amount exacted from the APC cannot be made part of the Federal Consolidated Fund has not been disputed by the learned Sr. ASC for the USF and the learned Additional Attorney General and rightly so because neither the parameters prescribed by Articles 78 and 79 of the Constitution for the fund, nor the purpose of APC for the USF prescribed by the Act can be enlarged or extended without amendment in the Constitution and the Act. Even the Secretary, Ministry of Finance, Govt. of Pakistan has assured the Court through a statement duly signed by him that the USF shall be used for the purposes it has been exacted for and that the USF amount transferred earlier to the Federal Consolidated Fund is also available for transfer to the USF as per the current mechanism in place. We would, however, observe that it be transferred to the USF as early as possible. 11. Having thus considered, we don’t feel inclined to interfere with the impugned judgment, notwithstanding the reasons recorded in support of the conclusions are different. 12. For the reasons discussed above, these appeals as well as petition being without merits are dismissed. Judge Judge Announced in open Court at Islamabad on 22.12.2015. Judge ‘Not Approved For Reporting’ M. Azhar Malik

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, CJ MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE IJAZ-UL-AHSAN CIVIL APPEAL NO.14-L OF 2013 (On appeal from the order dated 27.3.2012 of the Lahore High Court, Lahore, passed in W.P. No.4144 of 2010) Saif-ur-Rehman … Appellant Versus Addl. District Judge, Toba Tek Singh and two others … Respondent (s) For the Appellant : Mr. Sarfraz Khan Gondal, ASC For Respondent No.3 : Mian Shah Abbas, ASC Date of Hearing : 17.04.2018 JUDGMENT SH. AZMAT SAEED, J.- This Civil Appeal by leave of the Court is directed against the Order dated 27.03.2012, whereby a Constitutional Petition i.e. Writ Petition No.4144 of 2010, filed by the present Appellant, was partly accepted. 2. The brief facts necessary for adjudication of the lis at hand are that the Appellant and CA.14-L/2013 2 Respondent No.3 were married but unfortunately, the matrimonial relationship between the parties collapsed, whereafter, Respondent No.3 filed a Suit for Dissolution of Marriage as well as the Suit for Return of Dowry Articles. The former Suit was decreed vide judgment and decree dated 01.02.2008 and the marriage dissolved. No challenge was thrown to it and such decree attained finality. 3. The Suit for Dowry Articles was also decreed by the learned Family Court for an amount of Rs.25,000/- vide judgment and decree dated 29.09.2009. Respondent No.3 filed an appeal before the learned First Appellate Court, which was allowed vide judgment and decree dated 27.01.2010 and the decretal amount was enhanced to Rs.4,00,000/-. In the above backdrop, the present Appellant invoked the Constitutional jurisdiction of the learned Lahore High Court, Lahore by filing Writ Petition No.4144 of 2010. After hearing the parties, vide impugned Order dated 27.03.2012, the Writ Petition filed by the present Appellant was partly accepted and the CA.14-L/2013 3 amount in lieu of dowry articles was reduced to Rs.3,00,000/-. 4. The Appellant invoked the jurisdiction of this Court by filing Civil Petition bearing No.781-L of 2012, in which Leave to Appeal was granted vide Order dated 01.01.2013. The said Order is reproduced herein below for ease of reference: “States, that the judgment and decree of the Family Court pertaining to the return of dowry articles was to the tune of Rs.25,000/- (rupees twenty five thousand), thus as per the provisions of Section 14(2)(b) of the West Pakistan Family Courts Act, 1964, no appeal was competent before the learned Additional District Judge, therefore, the appellate judgment which has been partly affirmed by the learned High Court is without jurisdiction. Besides, the list of dowry articles had not been proved by the respondent in terms of the law and there are many contradictions in those which are apparent on the face of the record. Leave is granted to consider the above.” 5. We have heard the learned counsel for the parties and examined the available record. 6. The learned Appellate Court, after examining the evidence available on the record, returned a finding that Respondent No.3 was entitled CA.14-L/2013 4 to return of dowry articles and in lieu thereof she was entitled to a sum of Rs.4,00,000/-. The learned High Court, after examining the evidence, more particularly, the statement of Respondent No.3 as PW-1 concurred with the findings of the learned First Appellate Court that the said Respondent was entitled to the value of the dowry articles but the quantum thereof was reduced from Rs.4,00,000/- to Rs.3,00,000/-. The findings of the learned High Court appeared to be based on a fair and reasonable appreciation of the evidence. No misreading or non- reading of evidence has been pointed out at the bar. The reasoning does not appear to be perverse. Thus, no ground for interference, in this behalf, is made out. 7. The only other question, which floated to the surface and was asserted by the learned counsel for the Appellant is that the learned Family Court had granted a decree for a sum of Rs.25,000/- upon the claim of dowry, hence, in view of Section 14(2) of the Family Courts Act, 1964 (Act of 1964), no appeal was maintainable against the said judgment and CA.14-L/2013 5 decree being less than the amount mentioned in the aforesaid provisions of law; hence, the judgment and decree of the learned First Appellate Court was wholly without jurisdiction. Consequently, the impugned Order of the learned High Court partly affirming the same was also liable to be set aside. Leave in the instant case has been granted to consider the aforesaid aspect of the matter. 8. The aforesaid contentions of the learned counsel for the Appellant have been controverted by the learned counsel for Respondent No.3. It has been contended that the embargo placed on the right of appeal being pressed into service by the learned counsel for the Appellant applies to the husband only and not to a wife, dissatisfied with the quantum or denial of relief. 9. It is Section 14 of the Act of 1964, more particularly, sub-section (2) thereof, which is required to be interpreted in order to adjudicate upon the divergent contentions, in this behalf, canvassed by the learned counsel for the parties at the bar. CA.14-L/2013 6 10. Before proceeding further, it may be appropriate to contextualize the Family Courts Act, 1964 in general and Section 14(2), in particular. Out of the general canvass of the forum and procedure for adjudication of the claims and disputes, a jurisdiction has been carved out through the enactment of the Family Courts Act, 1964, creating a special forum i.e. the Family Court for adjudication of the family disputes in accordance with the special procedure as set forth in the aforesaid Act of 1964 and the Rules framed thereunder i.e. The West Pakistan Family Courts Rules, 1965. The purpose of this exercise is evident from the preamble of the Act of 1964 i.e. “expeditious settlement and disposal of disputes relating to marriage and family affairs”. The nature of disputes which can be brought before the Family Court for adjudication have been set forth and enumerated in Part I of the Schedule referred to in Section 5 of the Act of 1964. It is now settled law that a purposive rather than a literal approach to interpretation is to be adopted while interpreting Statutes. An interpretation which advances the CA.14-L/2013 7 purpose of the Act is to be preferred rather than an interpretation which defeats its objects. Reference, in this behalf, may be made to the judgments reported as Federation of Pakistan through Ministry of Finance and others v. M/s. Noori Trading Corporation (Private) Limited and 14 others (1992 SCMR 710) and Hudabiya Engineering (Pvt) Limited v. Pakistan through Secretary, Ministry of Interior, Government of Pakistan and 6 others (PLD 1998 Lahore 90). 11. The second aspect of the Family Courts Act, 1964 and the Rules framed thereunder as amended from time to time would reveal its gender sensitivity. A glance at Section 3 of the Act of 1964 reveals that women Judges are specifically catered for. The residence of the wife can be a determining factor for conferring territorial jurisdiction in certain Suits as is evident from the provisions of Rule 6 of the West Pakistan Family Courts Rules, 1965. There can be no escape from the fact that the tone and tenor of the Family Courts Act, 1964 and the Rules framed thereunder are beneficial in nature. It is an equally CA.14-L/2013 8 settled law that beneficial provisions in a Statute must be interpreted liberally in a manner so that the benefit conferred is advanced rather than frustrated or subverted. Reference, in this behalf, may be made to the judgments of this Court reported as Lahore Development Authority through D.G., Lahore and another v. Abdul Shafique and others (PLD 2000 SC 207) and Pakistan Engineering Co. Limited, Lahore through Managing Director v. Fazal Beg and 2 others (1992 SCMR 2166). 12. Section 14(2) of the Family Courts Act, 1964, must necessarily be approached and interpreted in the above backdrop and in accordance with the aforesaid principles i.e. the purposive object thereof achieved and being beneficial in nature, the benefits so conferred are actualized. 13. Sub-section (1) of Section 14 of the Act of 1964, confers a right of appeal. However, by virtue of sub-section (2) of Section 14 of the Act of 1964, this right of appeal has been curtailed. The obvious purpose of curtailing the right of appeal is to avoid the benefits of any decree which may have been CA.14-L/2013 9 passed being tied up in an appeal before a higher forum. It has also been noticed that in only three eventualities that even the right of first appeal has been curtailed. In all three eventualities, the decree would be for the benefit of the wife for dissolution of marriage under Clause (a), for dower or dowry under Clause (b) and for maintenance under Clause (c). The last may also be for the benefit of a minor. Thus, the only logical and reasonable interpretation, which is in accordance with the purposive of the Act and in line with the beneficial nature thereof would be that a judgment-debtor of a decree envisages in Clauses (a), (b) and (c) of sub-section (2) of Section 14 of the Act of 1964, would not have a right of appeal so that the disputes mentioned therein are resolved expeditiously and the benefits conferred through such decree reach the decree-holder without being frustrated. However, the said provision cannot be interpreted so as to exclude a right of appeal to a wife whose claim of dower or dowry has been partially or entirely declined. For such an CA.14-L/2013 10 interpretation, would defeat the purpose and object of the Act of 1964 and frustrate its beneficial nature. 14. This Court while interpreting Section 14(2) of the Act of 1964, in its judgment reported as Tayyaba Yunus v. Muhammad Ehsan and others (2010 SCMR 1403) held that where a Suit for dower has been dismissed, the wife has a right of appeal under Section 14(2) of the above-said Act of 1964. 15. In a case pertaining to dissolution of marriage, this Court in the judgment reported as Abid Hussain v. Additional District Judge, Alipur, District Muzaffargarh and another (2006 SCMR 100) held as follows: “The object behind non-provision of appeal in case of dissolution of marriage is to protect women, an under privileged and generally oppressed section of our society from prolonged and costly litigation. It aims to put a clog on the right of husband.” 16. Thus, the only possible purposive beneficial and rational interpretation of Section 14(2) of the Act of 1964, is that the right of appeal of a husband against whom a decree has been passed is curtailed, CA.14-L/2013 11 if the amount awarded is less than the amount, which is mentioned in the said provision. However, in no event the right of the wife to file an appeal is extinguished if she is dissatisfied with any decree in a Suit for dower or dowry. 17. The aforesaid view incidentally has also been consistently enunciated by the learned Lahore High Court in the judgments reported as Ghulam Rasool v. Senior Civil Judge and 4 others (PLJ 2008 Lahore 531), Saeeda Alia v. Syed Ghulam Mursalin Naqvi and another (2004 MLD 306) and Mst. Neelam Nosheen and others v. Raja Muhammad Khaqaan and others (2002 MLD 784). 18. In this view of the matter, there is no denial of fact that the appeal of Respondent No.3 was validly filed and the learned First Appellate Court was vested with the jurisdiction to adjudicate thereupon and such jurisdiction was not barred under Section 14(2) of the Act of 1964. In view of the above, this Civil Appeal is totally devoid of merit and is liable to be dismissed. CA.14-L/2013 12 19. These are the reasons of our short Order of even date, which is reproduced herein below: “For reasons to be recorded later, this appeal is dismissed.” Chief Justice Islamabad, the Judge 17th April, 2018 Judge ‘Approved For Reporting’ Safdar & Mahtab

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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 APPEAL NO.1400 OF 2019 (Against the judgment 31.5.2019 passed by High Court of Sindh at Karachi in C.P. No.493-D of 2018) Umaid Ali …Appellant(s) Versus The Election Commission of Pakistan through Secretary Election Commission of Pakistan Islamabad & others …Respondent(s) For the Appellant(s): Mr. Zulfiqar Khalid Maluka, ASC For Respondent No.5: Afnan Karim Kundi, ASC For Government of Sindh: Syed Shabbir Shah, Addl. A.G. Sindh Date of hearing: 11.03.2020 ORDER Umar Ata Bandial, J. The learned High Court through the impugned judgment dated 31.05.2019 has upheld the findings of the learned Election Commission of Pakistan (“ECP”) vide its order dated 16.01.2018, which held as follows: “In the light of above discussion, we are of the considered view that respondent violated the provisions of Section 36(1)(i)(j) and section 80(2) of the Sindh Local Government Act, 2013 and Article 63(1)(l) of the Constitution. It is proved though the documentary evidence that respondent was a Government contractor (owner of Dhatti one Transport Company Civil Appeal No.1400 of 2019 2 Umerkot) and received a huge amount of Rs.40,27,450/- from Government. Being a Government Contractor the respondent was not eligible to file nomination papers or take part in the Local Government Election held in 2015 for the seat of Member, Town Committee, Kheme Jo Par and thereafter for the seat of Chairman of the said Town Committee. The petition is accepted.” 2. Learned counsel for the appellant has contended that the disqualification of the appellant is confined to Section 36(1)(i) of the Sindh Local Government Act, 2013 (“the Act”), which reads as follows: S36(1) “A person shall be disqualified from being elected or chosen as and from being a member of the Council, if- (i) he is under contract for work to be done or goods to be supplied to a council or has otherwise any direct pecuniary interest in its affairs.” Admittedly, the appellant is a Government Contractor but he is not a Contractor with any Council nor does he have any direct pecuniary interest in the affairs of such Council. Consequently, it is submitted that the appellant has been wrongly disqualified for holding the elected office of the Chairman, Town Committee, Kheme Jo Par, District Tharparkar Sindh. The learned counsel for the appellant has then urged that the ECP is the original forum for directing removal of a member of a Council under Section 36(2) of the Act. No appeal is provided against such decision of the ECP. On the other hand, the ECP is the appellate forum under Section 30 of the Act against a similar direction for removal of a member of Civil Appeal No.1400 of 2019 3 the Council by the Provincial Government under Section 25 of the Act. There is a duality of roles of the ECP in respect of the same relief which can lead to a conflict. 3. Learned counsel for the respondents submit that the impugned order of the ECP dated 16.01.2018 not only disqualifies the appellant under clause (i) of Section 36(1) of the Act but also on the basis of clause (j) of the said section. The language of that clause is reproduced below: (j) “he is for the time being disqualified or chosen as a member of the Provincial Assembly under any law for the time being in force.” His submission is that clause (j) ibid is a residuary or blanket provision that incorporates additional disqualifications in Article 63(1) of the Constitution. Consequently, the admitted status of the appellant as a Government Contractor attracts the sanction under Article 63(1)(l) of the Constitution which disqualifies a candidate who is a Government Contractor. It applies fully to the appellant and therefore he is disqualified in the present election. 4. After hearing the learned counsel for the parties, it transpires that since the appellant is a Government Contractor the disqualification under section 36(1)(i) ibid does not apply to the appellant because the disability thereunder extends to a contractor of a local Council. Accordingly, the only issue in controversy between the parties is whether the appellant is disqualified under clause (j) of Section 36(1) of the Act because that would attract clause (l) of Article 63(1) of the Constitution. The language of clause (j) ibid leaves much to be desired because it is not clear how “disqualified or chosen as a member of the Provincial Assembly” makes any sense. If as suggested by the learned counsel for the Civil Appeal No.1400 of 2019 4 respondents, the words ‘or chosen’ are to be ignored to arrive at the intended meaning then that amounts to ignoring the literal words and to reading down in order to ascertain the meaning of the statutory provision. On the other hand, if the words “from being elected” are read into the said provision after the word “disqualified” then such reading in is also avoided by the courts unless the intention of the law maker is clear. To ascertain the intention of the law maker if one looks at the other provisions of section 36(1) ibid, it is noticeable that these reproduce almost verbatim clauses (a), (b), (c) & (d) of Article 63(1) of the Constitution. Clause (c) of the Act, that reproduced clause (c) of Article 63(1) of the Constitution, was subsequently repealed on 27.08.2015. Clauses (f) & (g) of section 36(1) ibid correspond with the terms of clauses (h) & (g) of Article 63(1) of the Constitution but with the reduction of the period of disqualification. Clause (h) of section 36(1) ibid mirrors the provisions of clauses (i) & (j) of Article 63(1) of the Constitution. In the same manner clause (i) of section 36(1) ibid adopts the disqualification listed in clause (l) of Article 63(1) of the Constitution. The scope of the disqualifications under Article 63(1) have been modified in the Act to cater to the requirements of elected representatives of local Councils. In the above context, the modifications of the disqualifications contained in Article 63(1) of the Constitution for incorporation into the Act have made the Provincial Legislature’s intention clear about the nature and extent of disability of candidates for election to a Council under the Act. The statedly general or blanket disqualification incorporated through clause (j) of Section 36(1) of the Act, therefore, cannot again import the disqualifications under Civil Appeal No.1400 of 2019 5 Article 63(1) of the Constitution that have already been incorporated with modification in clauses (a) to (d), (f), (g), (h) & (i) of section 36(1) of the Act. Otherwise, clause (j) of section 36(1) ibid would either be repeating the incorporated disqualifications from Article 63(1) of the Constitution or undoing the modifications made thereto in section 36(1) of the Act. Although clause (j) of Section 36(1) ibid is unclear and vague, we are not convinced that clause (j) of the Act intends to repeat what is already stated in clauses (a) to (i) of section 36(1) of the Act. Accordingly, the rule of reading in or reading down is not attracted to the facts of this case. The application of such an aid while interpreting or construing a statutory provision has been dealt with in the case reported as Abdul Haq Khan & others vs. Haji Ameerzada & others (PLD 2017 SC 105, at page 117): “As a matter of statutory interpretation, Courts generally abstain from providing casus omissus or omissions in a statute, through construction or interpretation. An exception to this rule is, when there is a self-evident omission in a provision and the purpose of the law as intended by the legislature cannot otherwise be achieved, or if the literal construction of a particular provision leads to manifestly absurd or anomalous results, which could not have been intended by the legislature. However, this power is to be exercised cautiously, rarely and only in exceptional circumstances.” Following the above dictum, we are of the view that the Court cannot come to the assistance of the respondents to construe Civil Appeal No.1400 of 2019 6 clause (j) of Section 36(1) of the Act to bear a meaning which is not apparent or clear from the words thereof. Nor is the need for the suggested attribution of a blanket disqualification in clause (j) of section 36(1) ibid evident from the intention of the law maker. This is because clauses (a) to (i) of Section 36(1) of the Act mirror the disqualifications contained in Article 63 of the Constitution. At best, clause (j) of Section 36(1) of the Act may encompass such other disqualifications in Article 63(1) of the Constitution that have not already been incorporated in Section 36(1) of the Act. In this behalf, clauses (n) & (o) of Article 63(1) of the Constitution dealing with willful default may be covered in clause (j) of Section 36(1) of the Act. However, this aspect is not germane to the present controversy and may be considered in some other appropriate case. Consequently, we are not inclined to agree with the impugned judgment that the appellant is disqualified under clause (j) of section 36(1) of the Act for admittedly being a Government Contractor. The relevant disqualification is section 36(1)(i) which disbars only a contractor of the Council and not a contractor of the Government. As a result, findings recorded in the impugned judgment of the ECP dated 16.01.2018 and affirmed by the learned High Court in its impugned judgment dated 31.05.2019 are in error. This appeal is, therefore, allowed. 5. The Provincial Government is also directed to re- examine and amend the language of Section 36(1)(j) of the Act as necessary to bring it in conformity with the intention of the legislature. Judge Civil Appeal No.1400 of 2019 7 Judge Judge Islamabad, the 11th March, 2020 Meher + Ghulam Raza APPROVED FOR REPORTING.

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE FAISAL ARAB MR. JUSTICE IJAZ UL AHSAN CIVIL APPEAL NO.1419 OF 2009 (Against the judgment dated 16.6.2009 of the Islamabad High Court, Islamabad passed in STR No.1/2009) Chairman, Federal Board of Revenue, Islamabad …Appellant(s) VERSUS M/s Al-Technique Corporation of Pakistan Ltd. etc. …Respondent(s) For the appellant(s): Mr. Khalid Abbas, ASC For respondent No.1: Sh. Iftikhar Ahmad, ASC Mr. Sohail Akram Malik, Senior Law Officer, Al-Technique Corporation Date of hearing: 22.11.2016 … ORDER MIAN SAQIB NISAR, J.- The leave granting order in this appeal envisages three questions of law but the learned counsel for the appellant whilst arguing the matter has confined himself to only one i.e. whether sterilization of syringes or other medical/surgical products by respondent No.1 (respondent) falls within the definition of ‘manufacture’ under Section 2(16) of the Sales Tax Act, 1990 (the Act) and consequently is chargeable to sales tax. The other two questions are identical and dependent on the above proposition, and require no independent expression of opinion by us. 2. The brief facts of the case are that the respondent is engaged in the business of gamma sterilization of medical/surgical products which are provided to it by other individuals/companies. The appellant department issued a notice to the respondent claiming that it was liable to Civil Appeal No.1419 of 2009 -: 2 :- pay sales tax on the sterilization process along with additional tax and thereafter passed an order in original to this effect. The respondent appealed against the order before the Sales Tax Appellate Tribunal but lost. However the learned High Court in the tax reference filed by the respondent held that the process of sterilization did not amount to ‘manufacturing’ and therefore sales tax was not payable. 3. Learned counsel for the appellant, by referring to the definition of ‘manufacture’ and ‘taxable supply’ (as reproduced later in this opinion), argued that value is added to the medical/surgical products on account of the sterilization process and this squarely falls within the definition of ‘manufacture’ and, therefore, the respondent is liable to pay sales tax. In support of his contention, he has cited the judgments reported as Collector of Customs, Central Excise and Sales Tax and others Vs. Mahboob Industries (Pvt.) Ltd. and others (PLD 2006 SC 148), Adil Polypropyleneah22 Products Limited and others Vs. The Federation of Pakistan through Secretary Finance, Federal Secretariat, Islamabad and others (2000 SCMR 1708) and Sheikhoo Sugar Mills Ltd. and others Vs. Government of Pakistan and others (2001 SCMR 1376). 4. Heard. It is settled principle of law that tax cannot be charged and levied unless it falls squarely within the purview of the charging provisions. Taxing laws are not to be extended by implication beyond the clear import of the language used. To hold otherwise would violate another principle of interpretation of taxing statutes: that tax laws should be construed in favour of the taxpayer and any substantial doubt resolved in favour of the citizen and against the government. This principle is based on the fact that taxation is a process which interferes with the personal and property rights of the people, although it is a necessary interference. Civil Appeal No.1419 of 2009 -: 3 :- But because it does take from the people a portion of their property, the tax laws must be construed in favour of the taxpayer1. In this context, Section 3 of the Act mandates as under:- “3. Scope of tax.—(1) Subject to the provisions of this Act, there shall be charged, levied and paid a tax known as sales tax at the rate of seventeen per cent of the value of— (a) taxable supplies made by a registered person in the course or furtherance of any taxable activity carried on by him; and (b) …………………………………………………………...” ‘Taxable supply’ has been defined in Section 2(41) as:- “2(41) “taxably supply” means a supply of taxable goods made by an importer, manufacturer, wholesaler (including dealer), distributor or retailer other than a supply of goods which is exempt under section 13 and includes a supply of goods chargeable to tax at the rate of zero per cent under section 4” (Emphasis supplied) ‘Manufacturer’ has been defined in Section 2(17) of the Act which reads as under:- “2(17) “manufacturer” or “producer” means a person who engages, whether exclusively or not, in the production or manufacture of goods whether or not the raw material of which the goods are produced or manufactured are owned by him; and shall include— (a) ……………………………………………………………… 1 The Construction of Statutes, Crawford, 1998. Civil Appeal No.1419 of 2009 -: 4 :- (b) ……………………………………………………………… (c) ……………………………………………………………… Provided that………………………………………………………” (Emphasis supplied) ‘Manufacture’ has in turn been defined in Section 2(16) of the Act which reads as follows:- “2(16) “manufacture” or “produce” includes— (a) any process in which an article singly or in combination with other articles, materials, components, is either converted into another distinct article or product or is so changed, transformed or reshaped that it becomes capable of being put to use differently or distinctly and includes any process incidental or ancillary to the completion of a manufactured product; (b) …………………………………………………………… (c) …………………………………………………………” (Emphasis supplied) We reiterate that there is no cavil with the principle that a charging provision in a fiscal statute is to be given a strict interpretation and if a case does not fall within the purview thereof, tax cannot be charged from a person from whom it is being claimed. As is clear from Section 3 of the Act, sales tax can only be charged/levied against a person who makes a taxable supply which has been defined in Section 2(41) of the Act which specifically and unequivocally provides that it is supply of taxable goods by inter alia a manufacturer. According to Section 2(17) of the Act a manufacturer is a person who engages in the manufacture of goods and therefore, the definition of manufacture provided in Section 2(16) of the Civil Appeal No.1419 of 2009 -: 5 :- Act becomes germane in the instant case. It is settled that a definition clause is foundational when construing provisions of law. The definition given in the Act should be so construed as not to be repugnant to the context and would not defeat or enable the defeating of the purpose of the Act. It must be read in its context and the background of the scheme of the statute and the remedy intended by it2. A bare reading of the definition of ‘manufacture’ suggests that it is a process where:- (i) an article singly or in combination with other articles, materials, components, is either converted into another distinct article or product; or (ii) an article is so changed, transformed or reshaped that it becomes capable of being put to use differently or distinctly; and (iii) includes any process incidental or ancillary to the completion of a manufactured product. Does the process of sterilization of the syringes/surgical products convert them into a distinct article or product or is the article (syringes) changed, transformed or reshaped? The answer will depend on the meaning attributed to said words. It may be pointed out at this juncture that the part of Section 2(16) of the Act “any process incidental or ancillary to the completion of a manufactured product” is ejusdem generis to the earlier part of the definition [paragraphs (i) and (ii)]. The alleged manufacturing activity must fall within the first two categories else the third category would have no independent application or legal significance. Returning to the issue at hand, the words ‘convert’, ‘change’, ‘transform’ and ‘reshape’ are important. Chambers 21st Century Dictionary has defined them as follows:- 2 Interpretation of Statutes, N. S. Bindra, tenth edition. Civil Appeal No.1419 of 2009 -: 6 :- “Convert – to change the form or function of one thing into another; Change – to make or become different; Transform – to change in appearance, nature, function, etc. often completely and dramatically; Reshape – to form or fashion or to give a particular form to something, again, or again and in a different way.” The Concise Oxford Dictionary (1982 ed.) has assigned the following meanings:- “Convert – change; change in character or function; Change – making or becoming different; Transform – make change in the form, outward appearance, character, disposition, etc.; Reshape – create, form, construct, model, mould, fashion, bring into desired or definite figure or form once more, again, afresh.” Further, ‘sterilization’ means “the treatment of food, surgical or laboratory equipment, etc. with heat, chemicals or radiation in order to destroy all living micro- organisms”.3 5. Adverting to the case law referred to by the learned counsel, the cases of Mahboob Industries (supra) and Adil Polypropylene Products (supra) pertain to excise and are therefore not relevant to the instant matter. In Sheikhoo Sugar Mills (supra) this Court held that the definition of the word ‘manufacture’ in Section 2(16) of the Act clearly suggested that the bagasse produced during the extrusion of sugarcane had an independent identity, status and character and was capable of being put 3 Chambers 21st Century Dictionary. Civil Appeal No.1419 of 2009 -: 7 :- to use differently therefore it fell within the said definition, therefore supplying bagasse fell within the definition of taxable supply. 6. From the facts of the present case, it is quite clear that the activity of gamma sterilization, which the respondent is engaged in – a process that eliminates all forms of living organisms – does not involve the conversion of any article singly or in combination with other articles into another distinct article or product. The process does not change, transform or reshape the syringes in any way, thereby rendering them capable of being put to use differently or distinctly. The syringes remain syringes after sterilization. Therefore, a bare reading of all the aforementioned definitions in their legal and usual context makes it manifest that the process of sterilization of medical/surgical products does not fall within the meaning of ‘manufacture’ as provided in Section 2(16) thus the respondent is not a ‘manufacturer’ under Section 2(17) and is not making a ‘taxable supply’ as per Section 2(41) and therefore cannot be charged to sales tax under Section 3 of the Act. In light whereof, this appeal is dismissed. JUDGE JUDGE JUDGE Bench-I Islamabad, the 22nd November, 2016 Not Approved For Reporting Waqas Naseer/*

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IN THE SUPREME COURT OF PAKISTAN ( Appellate Jurisdiction ) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE IQBAL HAMEEDUR RAHMAN CIVIL APPEAL NO.1428 OF 2015 (On appeal against the judgment dated 15.09.2015 Passed by the Peshawar High Court Peshawar, in R.P.No.32-P/2014 in W.P.No.2547-P/2012) Qayyum Khan. … … Appellant. VERSUS Divisional Forest Officer, Mardan Wildlife Division, Mardan and others. … … Respondents For the Appellant : Raja Muhammad Asghar Khan, ASC For Respondent No.1-4 : Mr. Waqar Ahmed Khan, Addl. AG. For Respondent No.5 : In-Person. Date of hearing : 25-02-2016 JUDGMENT AMIR HANI MUSLIM, J.- This Appeal, by leave of the Court is directed against order dated 19.05.2015 passed by the Peshawar High Court, Peshawar, whereby the Review Petition filed by the Appellant against the order dated 13.02.2014 passed in Writ Petition No.2547-P of 2012, was dismissed. 2. The facts necessary for the present proceedings are that on 01-02-2010, the Appellant was appointed as Wildlife Watcher (BS-05) in Sakra Wildlife Range, Mardan, on contract basis till the expiry of the Project. On 25.05.2012, during the contract period of the Appellant, the Finance Department, Government of KPK, vide letter No.BO11/FC/1- CA.1428/2015 2 5A/2012/13, converted the contract posts of Wildlife Watchers into permanent posts in the said Range. However, the Appellant was not considered for appointment on permanent basis and his services were terminated, vide order dated 05.06.2012. 3. The Appellant assailed the order of his termination before the Peshawar High Court, by filing Writ Petition No.2547 of 2012, which was dismissed. The Appellant filed Review Petition against the judgment passed by the learned High Court in the Writ Petition, which too was dismissed. The Appellant assailed the judgments of the learned Peshawar High Court before this Court by filing Civil Petition for leave to Appeal in which leave to Appeal was granted on 16.12.2015. Hence this Appeal. 4. The learned Counsel for the Appellant has contended that the post against which the Appellant was appointed had been converted to a regular post, therefore, the Appellant ought to have been appointed against the regular post. He submits that many other employees working on contract basis in the projects were regularized after the project posts had been converted to regular posts. 5. On the other hand, the learned Additional Advocate General, KPK, has supported the impugned judgments. 6. We have heard the learned Counsel for the Appellant and the learned Additional Advocate General, KPK. The only distinction between the case of the present Appellant and the case of the Respondents in Civil Appeals No.134-P of 2013 etc. is that the project in which the present Appellant was appointed was taken over by the KPK Government in the CA.1428/2015 3 year 2012 whereas most of the projects in which the aforesaid Respondents were appointed, were regularized before the cut-off date provided in North West Frontier Province (now KPK) Employees (Regularization of Services) Act, 2009. The present Appellant was appointed in the year 2010 on contract basis in the project after completion of all the requisite codal formalities, when on 25.05.2012, the project was taken over by the KPK Government. It appears that the Appellant was not allowed to continue after the change of hands of the project. Instead, the Government by cherry picking, had appointed some other person in place of the Appellant. The case of the present Appellant is covered by the principles laid down by this Court in the case of Civil Appeals No.134-P of 2013 etc. (Government of KPK through Secretary, Agriculture vs. Adnanullah and others), as the Appellants was discriminated against and was entitled to continue the job with the employees who were similarly placed and were allowed induction on regular basis. 7. We, for the aforesaid reasons, allow this Appeal and set aside the impugned judgments. The Appellant shall be reinstated in service from the date of his termination and is entitled to the back benefits for the period he has worked with the project or the KPK Government. The service of the Appellant for the intervening period i.e. from the date of his termination till the date of his reinstatement shall be counted towards his pensionary benefits. Judge Judge Islamabad the, 25th Feb, 2016. Approved for reporting. Judge Sohail/**

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE IQBAL HAMEEDUR RAHMAN MR. JUSTICE MAQBOOL BAQAR CIVIL APPEALS NO.1428 TO 1436 OF 2016 (Against the order dated 9.3.2016 of the Islamabad High Court, Islamabad passed in ICAs No.204, 205, 210/2014 and 793/2013, W.Ps.No.3025 to 3027/2014 and ICAs No.201 & 202/2014) M/s Mustafa Impex, Karachi …in C.As.1428 & 1429/2016 M/s SSS Enterprises, Karachi …in C.A.1430/2016 M/s Fact International, Karachi …in C.A.1431/2016 M/s Broadways, Karachi …in C.A.1432/2016 M/s M. A. Enterprises, Karachi …in C.A.1433/2016 M/s Bulash Enterprises, Karachi …in C.A.1434/2016 Muhammad Rehman & another …in C.A.1435/2016 Naveed Gaba Proprietor of “G Mobile”, Karachi and another …in C.A.1436/2016 …Appellant(s) VERSUS The Government of Pakistan through Secretary Finance, Islamabad etc. …Respondent(s) (in all cases) For the petitioner(s): Mian Muhammad Athar, ASC Mr. Shafqat Mahmood Chohan, ASC (in C.As.1428 to 1434 & 1436/2016) Mr. Farhat Nawaz Lodhi, ASC Syed Rifaqat Hussain Shah, AOR (in C.P.1435/2016) For the respondent(s): Sh. Izhar-ul-Haq, ASC Mr. M. S. Khattak, AOR (for Respondent No.3 in C.As.1428 & 1430/2016 & Respondent No.2 in C.As.1429, 1431, 1432 & 1433/2016) Raja Muhammad Iqbal, ASC (for Respondent No.5 & 6 in C.As.1428 & 1430/2016 & Respondent No.4 & 5 in C.As.1429 & 1431/2016) Ms. Misbah Gulnar Sharif, ASC Mr. M. S. Khattak, AOR (for Respondent No.4 in C.As.1428, 1430 & 1433/2016 & Respondent No.3 in C.As.1429, 1431, 1435 & 1436/2016) Mr. Khalil Dogar, ASC (for Respondent No.7 in C.As.1432 & 1434/2016 & Respondent No.6 in C.A.1433/2016) C.As.1428 to 1436 of 2016 -: 2 :- Ch. Muhammad Zafar Iqbal, ASC (for Respondent No.7 in C.As.1429 & 1431/2016, Respondent No.8 in C.As.1428, 1430 & 1433/2016, Respondent No.4 in C.As.1432 & 1434/2016) On Court’s call: Mr. Muhammad Waqar Rana, Additional Attorney General Mr. Abid Hussain Channa, S.O. M/o Finance Mr. Sajid Javed, Legal Assistant M/o Finance Amicus Curiae: Syed Ali Zafar, ASC Dates of hearing: 23.5.2016 & 24.5.2016 … JUDGMENT MIAN SAQIB NISAR, J:- These appeals with the leave of the Court entail the following facts:- the appellants are importers of cellular phones and textile goods. Earlier they enjoyed certain exemptions from sales tax granted by the Federal Government. Subsequently the exemptions were either withdrawn or the tax rates were modified vide notifications No.280(I)/2013, 460(I)/2013 (both relating to cellular phones) issued pursuant to Sections 3(2)(b), 3(6), 8(1)(b), 13(2)(a) and 71 of the Sales Tax Act, 1990 (the Act), and 682(I)/2013 (relating to textile goods) issued under Sections 4(c), 3(2)(b), 3(6), 8(1)(b) and 71 of the Act dated 4.4.2013, 30.5.2013 and 26.7.2013 respectively. Aggrieved of this withdrawal and/or modification (in the rate) of sales tax, the appellants challenged the same through constitution petitions before the learned Islamabad High Court on the primary ground that such notifications had not been issued by the Federal Government in accordance with Section 3 of the Act. The petitions were dismissed by the learned High Court through a consolidated judgment. The Intra-Court Appeals (ICA) initiated by the appellants also failed (note:- some constitution petitions were decided through the impugned judgment in ICA). Leave in these matters was granted to consider inter alia the following points:- C.As.1428 to 1436 of 2016 -: 3 :- “Learned counsel for the petitioners while attacking the impugned judgment of the learned Division Bench of the High Court affirming the judgment of the learned single Judge-in-Chambers submits that the petitioners have no cavil to the proposition that the Federal Government does have the power, jurisdiction and authority to issue the notification, however his argument is that the notifications in question dated 4.4.2013 and 30.5.2013 challenged in the constitution petitions were not issued by the Federal Government rather by the Additional Secretary who was not competent to do so. It is also submitted that to grant the exemption is only the privileged authority of the Cabinet as per the provisions of Article 90 of the Constitution of Islamic Republic of Pakistan, 1973 and even the Secretary or Advisor to the Prime Minister has no competence to issue such notifications and grant exemption. It is also submitted that the notification dated 4.4.2013 was issued before the approval was granted by the Advisor to the Prime Minister which was done ex-post facto. This again renders the said notification as nullity in the eyes of law.” Notice was also issued to the learned Attorney General for Pakistan in terms of Order 27A of the Code of Civil Procedure, 1908 (CPC); and in view of the importance of the matter Mr. Ali Zafar, learned ASC was appointed as an amicus curiae. 2. Learned counsel for the appellants has argued that only the Federal Government has the authority to issue notifications under Section 3(b) of the Act. Federal Government is not defined in the Act, but according to the provisions of Article 90 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution) the Prime Minister and the Ministers, i.e. the Cabinet as a whole, constitute the Federal Government for all intents and purposes. Neither the Prime Minister nor any Minister singularly has the authority to exercise the power(s) provided in Section C.As.1428 to 1436 of 2016 -: 4 :- 3 ibid. He submitted that as per Article 90 as it existed prior to the 18th Amendment, the President was to exercise the executive authority either directly or through the officers subordinate to him, but after the noted amendment such exercise can only be done by the Cabinet which has not been so done. He submitted that approval was sought from and granted by the Advisor to the Prime Minister on Finance, as has been conceded by the respondents in their comments (before the learned High Court), as opposed to the Cabinet which he (Advisor) was not authorized in law to give. Further, Rules 3 and 5 of the Rules of Business, 1973 (Rules of Business) only provide for the transaction and allocation of business, and there is nothing in the said Rules which empowers any individual to act or take decisions on behalf of the Federal Government, particularly with regard to levy of tax or grant of exemptions, etc. Learned counsel contended that there has been non-compliance with Rule 16(d) of the Rules of Business according to which proposals for levy/alteration of tax must be brought before the Cabinet. Learned counsel has relied upon Watan Party and another Vs. Federation of Pakistan and others (PLD 2011 SC 997) to support his concept of the executive. 3. On the other hand, the crux of the collective arguments of the learned counsel for the respondents is that the impugned notifications have been lawfully issued. According to them, the purport of Article 90 of the Constitution, as is made clear by sub-article (2), is that the Prime Minister or a Minister is empowered to exercise the executive authority, and not the Cabinet as a whole. According to Article 99 of the Constitution executive actions shall be taken by the Federal Government in the name of the President and pursuant to the article ibid the Rules of Business have been framed which specify the manner in which orders and instruments made and executed in the name of the President are to C.As.1428 to 1436 of 2016 -: 5 :- be authenticated, and also provides for the allocation of business. They submitted that Division has been defined in Rule 2(vi) of the Rules of Business as the administrative unit responsible for the conduct of business of the Federal Government. Rule 3(3) provides that the business of the government would be allocated to the Divisions in accordance with Schedule II, which in turn provides that tax policy and tax administration fall within the domain of the Revenue Division (Entries 1 and 2 of Clause 35 of Schedule II). Therefore the Chairman FBR, who is the ex-officio Secretary of the Revenue Division is duly empowered under Rule 4(2) read with Rule 3(3) to issue notifications pertaining to modification of tax which falls within the purview of tax policy and tax administration. Reference was also made to Rule 7(2) read with Schedule IV which allows the Secretary to authenticate by signature all orders and other instruments made and executed in the name of the President. It was further argued that despite the fact that the Secretary was competent to issue such notification under the Rules of Business, he sought approval of the Advisor by issuing the note for the Advisor to the Prime Minister on Finance dated 24.5.2013. They submitted that there is no requirement for matters pertaining to tax administration to be routed to and approved by the Cabinet. 4. The summary of the submissions of the learned Additional Attorney General is that:- (i) The Federal Government consists of the President and the Cabinet. The Federal Government conducts its business in accordance with the Rules of Business framed pursuant to Article 99(3) of the Constitution. (ii) The levy and exemption of tax is the function of Parliament under Article 77 of the Constitution and grant of exemption C.As.1428 to 1436 of 2016 -: 6 :- by the competent authority under the relevant law is in the nature of subordinate legislation. (iii) The power of exemption if given to the executive per se, would amount to the negation of the doctrine of parliamentary supremacy and the doctrine of separation of powers. (iv) If the proposition that exemption is not subordinate legislation is rejected and it is held that on the contrary it is an executive act, even then the Federal Government would conduct its business in accordance with the Rules of Business. (v) The impugned notification has been competently issued by the Secretary in exercise of the powers conferred upon him. Learned law officer stated at the very outset that Federal Government has not been defined, therefore the meaning of Federation, Federal Government, and executive authority of the Federation all need elucidation. In this context he gave us a broad view of the Constitution. Part III of the Constitution deals with the Federation which (part) consists of 3 chapters. Chapter 1 relates to the President, his term of office and his powers, etc. (Articles 41-49; particularly Article 48); Chapter 2 deals with the Parliament (Articles 50-89); and Chapter 3 pertains to the Federal Government (Articles 90-100). In the context of the matters at hand, he also made reference to Articles 7 (definition of the State) and 77 (deals with taxation power of the State which is to be “by or under the authority of law”). 5. In elucidating the meaning of “executive authority” the learned Additional Attorney General submitted that it was the residuary power after accounting for legislative and judicial power. The rationale behind this contention was that the earliest powers surrendered by the British Crown were the legislative and judicial powers, thus the only C.As.1428 to 1436 of 2016 -: 7 :- power left with the British Crown, and keeping in mind the fact that our Constitution is based upon the British Parliamentary form of government with modifications according to our needs, was the executive power which was two-fold – prerogative powers and powers vesting in the Crown. With a written constitution such as ours the only powers are those which are provided in the Constitution and there are no inherent powers. Therefore according to him the source of the executive authority of the Federation is the Constitution itself and the laws enacted by Parliament. With this background, he referred to the judgment reported as Rai Sahib Ram Jawaya Kapur and others Vs. The State of Punjab (AIR 1955 SC 549 at page 554 paragraph 7) in which the interpretation of Article 73 of the Indian Constitution was involved which (article) is pari materia to Article 90 of our Constitution except that the phrase “subject to the Constitution” was not present, and that the executive authority of the Federation “vests in the President”. The ratio of the case of Rai Sahib1 (supra), that the executive authority in Article 73 ibid is the residue of the legislative and judicial authority has been recently upheld in Pu Myllai Hlychho and others Vs. State of Mizoram and others (AIR 2005 SC 1537) and Satya Narain Shukla Vs. Union of India and others [(2006) 9 SCC 69]. He stated that there is a similar provision in the Australian Constitution and the Australian High Court has defined “executive authority” in the case reported as The State of Victoria and another and The Commonwealth of Australia and Hayden [(1975) 134 CLR 338]. Further, Article 2 of the US Constitution provides that the “executive power” shall vest in the President, however according to the learned law officer, power and authority can be used interchangeably. The judgment from the US jurisdiction cited in this 1 AIR 1955 SC 549 = (1955) 2 SCR 225 C.As.1428 to 1436 of 2016 -: 8 :- regard is the seminal case of Lois P. Myers, Adninistratix of Frank S. Myers, Appt. Vs. United States [272 U.S. 52 (1926) at 128 and 129]. 6. As regards the definition of “Federal Government”, he submitted that the President is the Head of the State (Article 41 of the Constitution), exercising the sovereign power of the State. According to Article 48(2) of the Constitution the President is to act upon the advice of the Cabinet, which could mean two things:- one is the Cabinet itself, the other is in Article 90 which very specifically refers to the Prime Minister and Federal Ministers. Article 91 defines the Cabinet as including the Ministers of State (Article 92), who have been deliberately omitted from Article 90. Therefore according to him, the Federal Government is the President along with the Cabinet headed by the Prime Minister. The Federal Government conducts its business in accordance with the Rules of Business framed pursuant to Article 99(2) of the Constitution. The word “business” has been defined in Rule 2(iii) of the Rules of Business as all work done by the Federal Government, which he submits includes both executive and legislative work. When the Federal Government conducts its business which includes the business which has been conferred on it pursuant to an Act of Parliament (reference was made to Article 77 whereby the Parliament is empowered to levy tax), that Act or law becomes relevant. The Sales Tax Act, 1990 provides that the grant of exemption is to be made by the Federal Government. Therefore this is not the executive, but legislative business. Levy of tax (which includes exemption from tax) is a legislative business, and accordingly the grant of exemption itself is a part of subordinate legislation. To conduct the business of subordinate legislation, the Federal Government has allocated this business to the Divisions concerned, in this case the Revenue Division. In this regard he relied upon the judgment reported as Tanveer A. C.As.1428 to 1436 of 2016 -: 9 :- Qureshi Vs. President of Pakistan, President House, Islamabad and 3 others (PLD 1997 Lahore 263). In support of the above contention he referred to the Pakistan Telecommunication (Re-Organisation) Act, 1996 which defines “Federal Government” as the Ministry of Information Technology and Telecommunication Division. By making reference to Article 97 of the Constitution, he submitted that once a law made by Parliament occupies the field then the authority is to be exercised in the manner provided by the law itself. While referring to Article 99(3) of the Constitution, he stated that granting exemption from tax is in the nature of subordinate legislation, therefore Article 90 which pertains to the exercise of executive authority, would not be relevant. 7. In Article 90, the phrase “officers subordinate” was replaced by “Prime Minister and Federal Ministers”. He referred to Emperor Vs. Sibnath Banerji and others (AIR 1945 PC 156) and The Crown Vs. Muhammad Afzal Bangash (PLD 1956 FC 1). He submitted that though the phrase “officers subordinate” as opposed to “Prime Minister and Federal Ministers” was used in our previous constitutions, the former phrase still included Ministers. He submitted that rationale behind the insertion of the words “subject to the Constitution” in Article 90, as in other articles of the Constitution beginning with the same phrase, was to differentiate the extent of the executive authority of the Federation in those situations from what was provided in Article 99. Article 90 of the Constitution starts with “subject to the Constitution”, which is a departure from the corresponding articles in the previous constitutions and the Indian Constitution. This phrase was never used earlier. Therefore the Federal Government constitutes the President along with the Cabinet headed by the Prime Minister and the business of the Federal Government is to be conducted in the manner provided and C.As.1428 to 1436 of 2016 -: 10 :- mandated by the Constitution in Article 99. As far as exemption is concerned, that falls under the power to levy tax which is dealt with by Article 77 and such power vests with Parliament, thus it is Parliament which will determine the manner in which such power is to be exercised. Since, according to him, the grant of exemption from sales tax is subordinate legislation it falls within the business of the executive which is to be exercised in the manner provided in the Rules of Business. Ministers have been accorded protection in terms of Article 248 of the Constitution. Finally while referring to Rules 4(2), 3(3), Schedule II, Rules 5(8) and 5(9) of the Rules of Business, learned law officer submitted that the business pertaining to tax has been allocated to the Revenue Division whose official head is the Secretary. In support of his contentions, he referred to the judgments reported as M. Afzal & Son and others Vs. Federal Government of Pakistan and another (PLD 1977 Lah 1327 at 1330 paragraph 7), Collector of Customs, Sales Tax and Central Excise etc. Vs. M/s Sanghar Sugar Mills Ltd., Karachi etc. (PTCL 2007 CL 565 at page 591 paragraph 24), Principles of Statutory Interpretation (14th Ed.) by Justice G. P. Singh, Indian Express Newspapers (Bombay) P. Ltd. and others Vs. Union of India and others (AIR 1986 SC 515), Union of India Vs. Paliwal Electricals (P) Ltd. and another (AIR 1996 SC 3106), British India Corporation Ltd. Vs. Collector of Central Excise, Allahabad and others (AIR 1963 SC 104), A. Sanjeevi Naidu etc., etc. Vs. State of Madras and another (AIR 1970 SC 1102 at paragraphs 10 and 11), Islamic Republic of Pakistan through the Secretary, Ministry of Defence, Government of Pakistan, Rawalpindi and another Vs. Amjad Ali Mirza (PLD 1977 SC 182 at page 192), Aman Ullah Khan and others Vs. The Federal Government of Pakistan through Secretary, Ministry of Finance, C.As.1428 to 1436 of 2016 -: 11 :- Islamabad and others (PLD 1990 SC 1092), Mohtarma Benazir Bhutto Vs. The President of Pakistan through the Secretary to the President (PLD 1992 SC 492 at page 516). 8. The learned amicus stated at the very outset that the State is like a ship and the Government its crew. The State has to be run by natural persons. The impugned notifications were purportedly issued under the provisions of the Act and have been challenged on the ground that the decision to issue them was not taken by the Federal Government i.e. the Prime Minister and the Cabinet. In this context the questions which require resolution are, first, who is the Federal Government/who are the natural persons who will run the State; secondly, what is the business that these persons, i.e. the Federal Government, are to run/what is their executive authority/what is the extent or limit of that authority; and thirdly, how does the Federal Government conduct this business/how does it exercise the power to decide and how does it then implement the law and the decision. 9. The learned amicus submitted that in a Parliamentary system, the Federal Government consists of the Prime Minister and Cabinet who are elected under the Constitution and they run the business of the State. In doing so, they have to exercise executive authority. Within the realm of such executive authority they may also be called upon by law to exercise legislative functions also known as delegated legislation and quasi-judicial functions as well. All such functions fall within the business of the State which they have to perform. The issuance of notifications and grant of exemptions pertaining to tax are an executive function given to the government as delegated legislation. C.As.1428 to 1436 of 2016 -: 12 :- 10. After tracing a brief history of executive authority in Pakistan, learned amicus submitted that the position presently is that the executive authority no longer vests in the President although it is to be exercised in his name, but it is now to be exercised directly by the Federal Government which consists of the Prime Minister and Federal Ministers. This Federal Government is to act through the Prime Minister who is the Chief Executive. Therefore direct executive authority has been given to the Federal Government. However he very candidly stated that whether the executive authority vests in the President or in the Prime Minister and Cabinet is not relevant for the decision of the third question (identified hereinabove) which is how that executive authority is to be exercised. 11. The framers of the Constitution envisaged that if every decision were to be taken by the President himself or the Cabinet as a whole, the business of the government would fail. Thus the Constitution provides for making of rules for allocation of business. These rules create a cascading hierarchy of authority with the Prime Minister and the Cabinet at the top, then Ministers, under whom there are Ministries, then Divisions which have a Secretary in charge with officers subordinate to the Secretary and each Division is given a business. Every Division is divided into sections with an officer and such sections also have businesses allocated thereto. Finally there are departments. The most important binding force according to the learned amicus is the concept of collective responsibility, enshrined in our Constitution. The scheme whereby, for example, a Minister is responsible for the acts of his Ministry; this is not delegation of power, but acting on behalf of. C.As.1428 to 1436 of 2016 -: 13 :- 12. The learned amicus referred to the Watan Party2 case (supra) (at paragraph 108) and Mian Muhammad Nawaz Sharif Vs. President of Pakistan and others (PLD 1993 SC 473) to elucidate the meaning of executive authority. According to him, executive authority is the administration of the government in accordance with law. There is no inherent executive authority and such authority has to be as provided for in the Constitution or the law, as held by Kaikaus, J. in Mian Jamal Shah Vs. (1) The Member Election Commission, Government of Pakistan, Lahore (2) The Returning Officer, Constituency of the National Assembly of Pakistan No. NW-II, Peshawar II, and (3) Khan Nasrullah Khan (PLD 1966 SC 1). Further, delegated legislation of exemption from tax or modification of rates under the umbrella of the general law is permissible. In this regard he referred to Zaibtun Textile Mills Ltd. Vs. Central Board of Revenue and others (PLD 1983 SC 358) and Messrs Sh. Abdur Rahim, Allah Ditta Vs. Federation of Pakistan and others (PLD 1988 SC 670). 13. The learned amicus made extensive reference to Articles 90, 91, 92, 97 98, 99, 41 and 48 of the Constitution and the relevant Rules of Business (as amended up to 16.1.2016). According to him, Article 90 provides that:- (i) executive authority is to be exercised in the name of the President (as he is the head of the State as per Article 41); (ii) executive authority is to be exercised by the Federal Government through the Prime Minister and the Federal Ministers; and (iii) the Federal Government shall act through the Prime Minister who shall be the Chief Executive of the Federation. He stated that the corresponding Article 39(1) of the Constitution of 1956 used to provide that:- (i) executive authority shall vest in the President; (ii) executive authority shall be exercised by the 2 PLD 2011 SC 997 C.As.1428 to 1436 of 2016 -: 14 :- President; and (iii) that he may do so directly or through officers subordinate to him. Previously there was no concept of Federal Government. Article 31 in the Constitution of 1962 corresponded to the current Article 90; in which the position was the same as Article 39(1) of the Constitution of 1956. The same position was reflected in the Constitution of 1972. However, in the Constitution of 1973 (as originally enacted) the scheme was the same as it is today. In the Constitution of 1985, the old 1956 provision(s) was brought back. Article 53 of the Indian Constitution corresponds with and reflects the position at the time of our Constitution of 1956. However learned amicus submits that the issue as to how the President (when the power previously vested in him), or the Prime Minister and/or the Cabinet is to exercise that power (when the power is to be exercised by them) will remain the same. The jurisprudence may change as to who is to exercise decision making powers but the concept of allocation of powers will not change. 14. He then referred to Article 91 of the Constitution which also reflects the concept that executive authority would be exercised by the Prime Minister and the Cabinet. Article 91(6) provides for the concept of collective responsibility, which was there in Article 37(1) and (5) in the Constitution of 1956, but interestingly was absent in the Constitution of 1973 as originally enacted, rather it was reintroduced in the Constitutional amendment of 1985. Article 74 of the Indian Constitution is more or less the same as Article 91 of our current Constitution. Going further, our Constitution also defines the limits of executive authority in Article 97; the same is restricted to the items contained in the Federal Legislative List. 15. He then moved on to the question of how the executive authority is to be exercised for which he referred to Article 99 of which C.As.1428 to 1436 of 2016 -: 15 :- sub-article (3) is the most important and relevant according to which framers of the Constitution deemed it fit to empower the Federal Government to make rules for the allocation and transaction of business. However in the Constitution of 1973 (as originally enacted) the language was slightly different and rather clearer according to him which provided that the Federal Government was empowered to delegate its functions to officers or authorities. In 1985, the article was shortened, empowering the President to make such rules, but such powers were then given to the Federal Government through the 18th Amendment. Therefore the concept of delegation contained in the original Constitution of 1973 does not exist anymore and this departure is most relevant. Now the officers exercise executive authority on behalf of the Federal Government as opposed to acting in delegation of such powers (note:- Article 77 of the Indian Constitution provides for allocation of business). In view of the foregoing, he concluded as follows:- executive authority is to be exercised in the name of the President; executive authority is to be exercised by the Prime Minister and the Cabinet; the Federal Government may act through the Prime Minister who is the Chief Executive of the Federation; this executive authority extends to subjects enumerated in the Federal Legislative Lists; and that the Federal Government can make rules for the allocation of its business, i.e. the Rules of Business. He referred to the judgments reported as Tariq Aziz- ud-Din and others: in re (2010 SCMR 1301), Government of Punjab through Secretary, Industries Mines and Minerals Development, Department, Lahore and another Vs. Shakeel Ahmad (2006 SCMR 485), Ahmad Nawaz Shah, Senior Intelligence Officer, Director General, Intelligence and Investigation (Customs and Excise), Islamabad Vs. Chairman, Central Board of Revenue, Islamabad and C.As.1428 to 1436 of 2016 -: 16 :- 10 others (2002 SCMR 560) and The State Vs. Anwar Saif Ullah Khan (PLD 2016 SC 276) which held that the Rules of Business have been framed under the Constitution and are therefore to be followed. 16. Coming to the Rules of Business, learned amicus referred to the definitions of the words “business”, “Cabinet”, “case”, “Division”, and “Ministry” provided in Rule 2. He discussed Rules 3, 4, 5 [particularly 5(9)(d) as per the same the Secretary is empowered to dispose of some business, Rule 5(10) and Rule 5(11)], and 6. He then read extensively from a book titled “The Government and the Law” authored by Professor Griffith. He relied upon the cases of Sibnath Banerji3 (supra) and Afzal Bangash4 (supra). He also referred to a series of seven cases that have arisen from this very issue in India, they are:- Rai Sahib’s5 case (supra), M/s Bijoya Lakshmi Cotton Mills Ltd. Vs. State of West Bengal and others (AIR 1967 SC 1145), A. Sanjeevi Naidu, etc. Vs. State of Madras and another [1970 (1) SCC 443], U.N.R. Rao Vs. Smt. Indira Gandhi [1971 (2) SCC 63], Bk. Sardari Lal Vs. Union of India and others [1971 (1) SCC 411], Samsher Singh Vs. State of Punjab and another (AIR 1974 SC 2192) and State of Sikkim Vs. Dorjee Tshering Bhutia and others [(1991) 4 SCC 243], Gulabrao Keshavrao Patil and others Vs. State of Gujarat and others [(1996) 2 SCC 26], MRF Ltd Vs. Manohar Parrikar and others [(2010) 11 SCC 374] and Delhi International Airport Ltd. Vs. International Lease Finance Corpn & others (AIR 2015 SC 1903) which pertain to allocation as opposed to delegation. He concluded that because there is allocation under the Rules of Business, the decisions have to be taken in accordance with it. 3 AIR 1945 PC 156 4 PLD 1956 FC 1 5 AIR 1955 SC 549 = (1955) 2 SCR 225 C.As.1428 to 1436 of 2016 -: 17 :- Finally he referred to Rule 16 of the Rules of Business which provides for Cabinet Rules and according to him sub-rule (d) which pertains to levy, alteration etc. of tax seems to be applicable to the instant matter, according to which the proposal may have been made by the relevant Division but has to eventually be brought before the Cabinet. 17. Heard. This case raises important and interesting questions of constitutional significance in relation to various key concepts found embedded in the Constitution of Pakistan. The most important of these is the connotation of the term “Federal Government”. Furthermore, we are also required to examine the concept of “executive powers” exercised by the Federal Government in addition to the various allied provisions, all of significant constitutional import, which are referred to below. Analysis is also required for, and in relation to, the Rules of Business. 18. Prior to analyzing the constitutional provisions we need to make a quick survey of their constitutional predecessors in the earlier constitutional arrangements in the subcontinent. For this purpose a convenient take off point is provided by the Government of India Act, 1935. However, prior to examining it closely, a brief reference to earlier Government of India Acts would be advantageous. 19. The first significant Government of India Act was passed in 1833, the Preamble whereof reads, “as an Act for effecting an Arrangement with the East India Company and for the better government of His Majesty’s Indian territories”. It was to remain in force till the 30th day of April 18546. This Act was followed by the Government of India Act, 6 Prior to the enactment of the 1833 Act the East India Company had certain rights of governance in relation to the territories in India. These rights were given statutory effect by means of the East Indian Company Act, 1773, which, however, is not relevant for our purposes. These rights were then surrendered by the Company to the British Government for various considerations C.As.1428 to 1436 of 2016 -: 18 :- 1853. The necessity for this enactment was obvious since the previous arrangement was due to expire in 1854. 20. It was followed by the Indian Councils Act, 1861, the preamble whereof stated that it was an Act to make better provision for the constitution of the Council of the Governor General of India and for various other contingencies. The 1861 Act was amended in 1892 to effect certain changes in the constitution of the Councils. 21. The next major development took place in 1915 through the enactment of the Government of India Act, 1915. This was the forerunner of the Government of India Act, 1935. Section 1 of the 1915 Act dealt with the powers of the Crown and stipulated that the territories for the time being vested in the Crown shall be governed in the name of the King and the rights which were previously exercised by the East India Company prior to the 1853 Act would be exercised by, and in the name of, the King (this is a formulation, which, in a modified form, persists till today). Section 2 dealt with the Secretary of State and Section 3 related to the constitution of the Council of India. Under Section 6 all powers required to be exercised by the Secretary of State in Council were to be exercised by the Council of India. Part-IV provided that the superintendence, direction and control of the civil and military government of India was to vest in the Governor General in Council who, in turn, was required to obey orders passed by the Secretary of State. The Governor General was authorized to set up an Executive Council under Section 35. Section 40 has bearing on the present case inasmuch as it is the legislative predecessor, and forerunner, of subsequent corresponding articles in the successive constitutions of Pakistan. Section 40 is reproduced below: C.As.1428 to 1436 of 2016 -: 19 :- “40. – (1) All orders and other proceedings of the Governor- General in Council shall be expressed to be made by the Governor-General in Council, and shall be signed by a Secretary to the Government of India, or otherwise, as the Governor-General in Council may direct. (2) The governor-general may make rules and orders for the more convenient transaction of business in his executive council, and every order made, or act done, in accordance with such rules and orders, shall be treated as being the order or the act of the Governor-General in Council.” It is not necessary for purposes of the present case to examine the other provisions of the Act. 22. We may note in passing that the 1915 Act was the first comprehensive legislation for, and in relation to, the governance of India and marked an attempt, perhaps a tentative first step, towards the rule of law as opposed to actions taken in exercise of the royal prerogative or based on the decisions of the Secretary of State. By means of the Fourth Schedule thereto the previous enactments dealing with the governance of India, beginning with the East India Company Act, 1770 onwards, were repealed. 23. The 1915 Act was succeeded by the Government of India Act, 1924, which was essentially intended as a consolidating Act and hence does not require any further discussion. Then followed the Government of India Act, 1935. Part-I of the Act was essentially introductory in nature and provided, in terms of Section 2, for the Government of India by the Crown. Part-II related to the Federation of India and conferred authority on the Crown to declare, by Proclamation, that from the appointed date the Federation of India would be created. However, in C.As.1428 to 1436 of 2016 -: 20 :- terms of Section 320 it was stipulated the Act would come into force in separate stages. It read as under:- “320(1) Part II of this Act shall come into force on such date as His Majesty may appoint by the Proclamation establishing the Federation and the date so appointed is the date referred to in this Act as the date of the establishment of the Federation. (2) The remainder of this Act shall, subject to any express provision to the contrary, come into force on such date as His Majesty in Council may appoint and the said date is the date referred to in this Act as the commencement of Part III of this Act.” 24. Due to various political vicissitudes which were an integral part of the struggle for freedom it was Part-III of the Act, which related to the Provinces, which came into full force. The part relating to the Federation was not enforced in pre-partition India (after partition the Government of India Act, 1935, as radically re-structured by Governor General’s Order No.22, was applied in Pakistan as a precursor of the 1956 Constitution. However, for purposes of our analysis it is the original version of the Act which is material). 25. The Federal Executive is the title of Chapter-II of the Act. Section 7 related to the functions of the Governor General on behalf of the King and Section 9 related to the Council of Ministers and its functions. Both sections are reproduced below in order to illustrate the striking similarity with their constitutional successors in Pakistan:- “7(1) Subject to the provisions of this Act, the executive authority of the Federation shall be exercised on behalf of His Majesty by the Governor-General, either directly or through officers subordinate to him, but nothing in this section shall prevent the Federal Legislature from conferring functions upon C.As.1428 to 1436 of 2016 -: 21 :- subordinate authorities, or be deemed to transfer to the Governor-General any functions conferred by any existing Indian law on any court, judge or officer, or on any local or other authority. (2) References in this Act to the functions of the Governor- General shall be construed as references to his powers and duties in the exercise of the executive authority of the Federation and to any other powers and duties conferred or imposed on him as Governor-General by or under this Act, other than powers exercisable by him by reason that they have been assigned to him by His Majesty under Part I of this Act. (3) The provisions of the Third Schedule to this Act shall have effect with respect to the salary and allowances of the Governor-General and the provision to be made for enabling him to discharge conveniently and with dignity the duties of his office.” --------------------------------------- “9(1) There shall be a council of ministers, not exceeding ten in number, to aid and advise the Governor-General in the exercise of his functions, except in so far as he is by or under this Act required to exercise his functions or any of them in his discretion: Provided that nothing in this subsection shall be construed as preventing the Governor-General from exercising his individual judgment in any case where by or under this Act he is required so to do. (2) The Governor-General in his discretion may preside at meetings of the council of ministers. (3) If any question arises whether any matter is or is not a matter as respects which the Governor-General is by or under this Act required to act in his discretion or to exercise his individual judgment, the decision of the Governor-General in C.As.1428 to 1436 of 2016 -: 22 :- his discretion shall be final, and the validity of anything done by the Governor-General shall not be called in question on the ground that he ought or ought not to have acted in his discretion, or ought or ought not to have exercised his individual judgment.” 26. Section 17 is also relevant and stipulated that all executive actions of the Federal Government shall be expressed to be taken in the name of the Governor General. The said section is reproduced below:- “17 - (1) All executive actions of the Federal Government shall be expressed to be taken in the name of the Governor- General. (2) Orders and other instruments made and executed in the name of the Governor-General shall be authenticated in such manner as may be specified in rules to be made by the Governor-General, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor-General. (3) The Governor-General shall make rules for the more convenient transaction of the business of the Federal Government, and for the allocation among ministers of the said business in so far as it is not business with respect to which the Governor-General is by or under this Act required to act in his discretion. (4) The rules shall include provisions requiring ministers and secretaries to Government to transmit to the Governor- General all such information with respect to the business of the Federal Government as may be specified in the rules, or as the Governor-General may otherwise require to be so transmitted, and in particular requiring a minister to bring to the notice of the Governor-General, and the appropriate secretary to bring C.As.1428 to 1436 of 2016 -: 23 :- to the notice of the minister concerned and of the Governor- General, any matter under consideration by him which involves, or appears to him likely to involve, any special responsibility of the Governor-General. (5) In the discharge of his functions under subsections (2), (3) and (4) of this section the Governor-General shall act in his discretion after consultation with his ministers.” 27. We propose to begin with the term “Federal Government”. It has been submitted before us on behalf of the Government, that the concept of Federal Government had not been defined and hence was required to be determined. This, we must point out, is less than accurate. The General Clauses Act, 1897, at Section 3(8-ab) contains a compendious description of the meaning of the said term for, and in relation to, five different time periods. In brief, it will be noted that the concept of Federal Government has not remained static but has varied with the passage of time. The definition in the General Clauses Act thus provides a convenient overview of the concept. The said definition is reproduced hereinbelow:- “Federal Government”. Federal Government shall – (a) in relation to anything done before the commencement of Part III of the Government of India Act, 1935 mean the Governor General in Council or the authority competent at the relevant date to exercise the functions corresponding to those subsequently exercised by the Governor General; (b) in relation to anything done after the commencement of Part III of the said Act, but before the establishment of the Federation of Pakistan, mean, as respects matters with respect to which the Governor General was by or under the C.As.1428 to 1436 of 2016 -: 24 :- provisions of the said Act then in force required to act in his discretion, the Governor General and as respects other matters, the Governor General in Council; (c) in relation to anything done after the establishment of the Federation of Pakistan but before the twenty third day of March, 1956, mean the Governor General; and shall include- (i) in relation to functions entrusted under subsection (1) of section 124 of the said Act to the Government of a Province, the Provincial Government acting within the scope of the authority given to it under that subsection; and (ii) in relation to the administration before the fourteenth day of October, 1955, of a Chief Commissioner’s Province, the Chief Commissioner acting within the scope of the authority given to him under subsection (3) of section 94 of the said Act, and (d) In relation to anything done or to be done, after the twenty third day of March, 1956, mean the President; and shall include in relation to functions entrusted to the Government of a Province, the Provincial Government acting within the scope of the authority given to it by the President. (e) In relation to anything done or to be done, after the fourteenth day of August, 1973, mean the Prime Minister and the Federal Ministers; and shall include in relation to functions entrusted to the Government of a Province, the Provincial Government acting within the scope of the authority given to or power conferred on it by the Federal Government; C.As.1428 to 1436 of 2016 -: 25 :- 28. It can be observed that the legislature elucidated the concept of Federal Government over five phases. The first began prior to the commencement of Part-III of the Government of India Act, 1935, and refers to the Governor General in Council, or the authority competent, at the relevant date, to exercise those functions which were subsequently exercised by the Governor General. During this period executive authority vested in the Crown was exercised in a manner untrammeled by restrictions and at the absolute discretion of the Crown. The second time period began after the commencement of Part-III of the said Act but before the establishment of the Federation of Pakistan. This was, in essence, the nascent functioning of constitutional rule in a country which was still subservient to the Crown. It draws a distinction between the Governor General (exercising his discretionary power) and the Governor General in Council (a concept which is analogous to the functioning of a cabinet). The third time period commenced after the creation of the Federation of Pakistan but prior to the 23rd day of March, 1956 and refers to the Governor General (it is clarified that functions, in relation to provincial administration do not concern us in this analysis). The fourth time period began after the 23rd day of March, 1956, i.e. with the introduction of the Constitution of 1956, and refers to the President, in whom the executive authority of the state was vested, in name, to be exercised in accordance with various constitutional provisions (as well as certain functions in relation to the provinces). This definition omits any specific reference to the Constitution of 1962. Finally, we come to the period after the 14th day of August, 1973 which refers to the Prime Minister and the Federal Ministers and, once again, includes, in relation to the functions entrusted to the Government of a Province, the Provincial Government acting within the scope of the C.As.1428 to 1436 of 2016 -: 26 :- authority given to it, or power conferred on it, by the Federal Government. 29. This is essentially a descriptive definition. As observed earlier, for our purposes it will not be necessary to embark on a discussion for, and in relation to, the provincial sphere conceptualized by it. However, before we embark upon a normative analysis of the concept of Federal Government it will be advantageous to place it within a historical perspective. Sections 7, 9 and 17 of the Government of India Act, 1935 are of seminal importance for, and in relation to, the development of constitutional terminology in the subsequent constitutional dispensations relating to the exercise of political power. Essentially the 1935 Act furnished the template on which the Constitution of Pakistan, 1956, was based, which, in turn laid down the architectural framework within which the Constitution of Pakistan, 1973 was framed. 30. Chapter II of Part-II of the 1935 Act bore the heading “the Federal Executive”. The term Federal Executive considered contextually appears to be a synonym and means exactly the same thing as the Federal Government. Section 7 is the first section contained in Chapter-II and has been reproduced above. Section 7 is followed by Section 8 which clarifies the matters in relation to which the executive authority of the Federation extends. It is coterminous with the Federal legislature’s powers to make laws. It is not necessary for purposes of this case to deal with the other topics covered by Section 8. Section 8, in turn, is followed by Section 9 which bears the heading “Administration of Federal affairs”. Thereafter we have Section 10 which relates to the appointment of Ministers by the Governor General. Travelling further, we come to C.As.1428 to 1436 of 2016 -: 27 :- Section 17 which, as noted, provides that all executive action(s) of the Federal Government are to be expressed to be in the name of the Governor General. 31. It can be seen, at a glance, that the above provisions are the foundations on the basis of which Articles 90 and 99 of the Constitution of 1973 were drafted. However, before we arrive at the 1973 Constitution we can examine the comparable provisions of the 1956 Constitution. 32. Part-IV of the 1956 Constitution bears the heading “The Federation”. Chapter-I, which follows, bears the title “The Federal Government”. Article 32 deals with the office of the President and the relevant part thereof is reproduced below:- “32. The President. – (1) There shall be a President of Pakistan, in the Constitution referred to as the President, who shall be elected by an electoral college consisting of the members of the National Assembly and the Provincial Assemblies, in accordance with the provisions contained in the First Schedule. The Cabinet is dealt with under Article 37 which is reproduced below:- “37. The Cabinet. – (1) There shall be a Cabinet of Ministers with the Prime Minister at its head, to aid and advise the President in the exercise of his functions. (2) The question whether any, and if so, what, advice has been tendered by the Cabinet, or a Minister or Minister of State, shall not be inquired into in any court. (3) The President shall, in his discretion, appoint from amongst the members of the National Assembly a Prime Minister who, in his opinion, is most likely to command the C.As.1428 to 1436 of 2016 -: 28 :- confidence of the majority of the members of the National Assembly. (4) Other Ministers, Ministers of State and Deputy Ministers shall be appointed and removed from office by the President, but no person shall be appointed a Minister of State or Deputy Minister unless he is a member of the National Assembly. (5) The Cabinet, together with the Ministers of State, shall be collectively responsible to the National Assembly. (6) The Prime Minister shall hold office during the pleasure of the President, but the President shall not exercise his powers under this clause unless he is satisfied that the Prime Minister does not command the confidence of the majority of the members of the National Assembly. (7) In the exercise of his functions, the President shall act in accordance with the advice of the Cabinet or the appropriate Minister or Minister of State, as the case may be, except in cases where he is empowered by the Constitution to act in his discretion, and except as respects the exercise of his powers under clause (6). Explanation. – For the avoidance of doubt it is hereby declared that for the purpose of clause (4) the appropriate Minister shall be the Prime Minister.” The next relevant article for our purposes is Article 39 which deals with the executive authority of the Federation and reads as under: “39. Extent of executive authority of the Federation. – (1) The executive authority of the Federation shall vest in the President and shall be exercised by him, either directly or through officers subordinate to him, in accordance with the Constitution. C.As.1428 to 1436 of 2016 -: 29 :- (2) The executive authority of the Federation shall extend to all matters with respect to which Parliament has power to make laws: Provided that, save as expressly provided in the Constitution or in any Act of Parliament which Parliament is, under the Constitution, competent to enact for a Province, the said authority shall not extend in any Province to any matter with respect to which the Provincial Legislature also has power to make laws.” Thereafter we come to Article 41 which deals with the conduct of business of the Federal Government and reads as under:- “41. Conduct of business of the Federal Government. – (1) All executive actions of the Federal Government shall be expressed to be taken in the name of the President. (2) The President shall by rules specify the manner in which orders and other instruments made and executed in his name shall be authenticated, and the validity of any order or instrument so authenticated shall not be questioned in any court on the ground that it was not made or executed by the President. (3) The President shall also make rules for the allocation and transaction of the business of the Federal Government.” 33. The Constitution of 1962 is not really relevant to the present discussion since the entire axis was altered from a parliamentary form of government into a presidential one. Nevertheless, it is striking that despite this, many of the key concepts were borrowed from the preceding constitutional instruments. C.As.1428 to 1436 of 2016 -: 30 :- Part-III of the 1962 Constitution bore the heading “The Centre” i.e. the Federation. Chapter-III was titled The Central Government, which was the original term for the Federal Government. Article 31 dealt with the Executive Authority of the Federation and read as under:- “31. Executive Authority of Republic vests in President. – The executive authority of the Republic is vested in the President and shall be exercised by him, either directly or through officers subordinate to him in accordance with this Constitution and the law.” Thereafter, comes Article 32 which relates to the Business of Government and is reproduced below:- “32. Execution of instruments, etc. – The President may – (a) Specify the manner in which orders and other instruments made and executed in pursuance of any authority or power vested in the President shall be expressed and authenticated; and (b) Regulate the allocation and transaction of the business of the Central Government and establish divisions of that Government.” 34. The Constitution of 1972, being merely an interim arrangement does not require analysis. 35. The present Constitution came into force on 12th of April, 1973. Once again Part-III deals with the Federation of Pakistan. Chapter-III bears the heading “The Federal Government”. Article 90, the article with which we are primarily concerned, is the opening article of Chapter-III and is reproduced below (as originally enacted):- “90. The Federal Government. – (1) Subject to the Constitution, the executive authority of the Federation shall be C.As.1428 to 1436 of 2016 -: 31 :- exercised in the name of the President by the Federal Government, consisting of the Prime Minister and the Federal Ministers, which shall act through the Prime Minister who shall be the chief executive of the Federation. (2) In the performance of his functions under the Constitution, the Prime Minister may act either directly or through the Federal Ministers. (3) The Prime Minister and the Federal Ministers shall be collectively responsible to the National Assembly.” The important point to note about the original structure of Article 90 is that the first two clauses are identical to those contained in its present version. The third clause, which deals with the subject of collective responsibility to the National Assembly no longer remains a part of Article 90 since it has been moved to Article 91(6) with a minor terminological emendation. However, what is important to note is that in the interregnum between the enactment of Article 90, as it originally stood, and its present restoration, a radical change was introduced in 1985. By means of the Revival of the Constitution Order (Presidential Order No.14 of 1985, which was the forerunner of the 8th Amendment to the Constitution) Articles 90 to 95 were substituted therefor. The substituted version of Article 90 under the 8th Amendment is reproduced below:- “90. Exercise of executive authority of the Federation. – (1) The executive authority of the Federation shall vest in the President and shall be exercised by him, either directly or through officers subordinate to him, in accordance with the Constitution. (2) Nothing contained in clause (1) shall – C.As.1428 to 1436 of 2016 -: 32 :- (a) be deemed to transfer to the President any functions conferred by any existing law on the Government of any Province or other authority; or (b) prevent the Majlis-e-Shoora (Parliament) from conferring by law functions on authorities other than the President.” 36. Article 91, which currently deals with the Cabinet, at that time dealt with the election or appointment of the Prime Minister. It is not necessary for our purposes to examine this intermediate version of Article 91. 37. Article 99 of the constitution was also substituted in 1985. The original Article 99 read as under:- “99. Conduct of business of Federal Government. – (1) Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the Federal Government, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President. (2) The Federal Government may regulate the allocation and transaction of its business and may for the convenient transaction of that business delegate any of its functions to officers or authorities subordinate to it.” However, in 1985 it was substituted to read as under: “99. Conduct of business of Federal Government: (1) All executive actions of the Federal Government shall be expressed to be taken in the name of the President. C.As.1428 to 1436 of 2016 -: 33 :- (2) The President shall by rules specify the manner in which orders and other instruments made and executed in his name shall be authenticated, and the validity of any order or instrument so authenticated shall not be questioned in any Court on the ground that it was not made or executed by the President. (3) The President shall also make rules for the allocation and transaction of the business of the Federal Government.” At present, after the 18th Amendment it reads as under:- “99. Conduct of business of Federal Government: (1) All executive actions of the Federal Government shall be expressed to be taken in the name of the President. (2) The Federal Government shall by rules specify the manner in which orders and other instruments made and executed in the name of President shall be authenticated, and the validity of any order or instrument so authenticated shall not be questioned in any Court on the ground that it was not made or executed by the President. (3) The Federal Government shall also make rules for the allocation and transaction of its business.” It will be observed that except for the substitution of the term Federal Government for the President the latter two versions are identical. 38. The 18th Amendment, which was passed in 2010, made a conscious attempt, (albeit not consistently) to eradicate from the text of the Constitution amendments which had been made in 1985, as they were considered as remnants of a military government. Thus we find that Article 90 was returned to its original formulation except for clause (3). C.As.1428 to 1436 of 2016 -: 34 :- Similarly Article 91 was replaced, although not in identical terms. We are not, however, concerned with this aspect of the matter. 39. Reverting to Article 99, we note there are two very important alterations, which are material in the facts of the present case (however learned counsel for the parties did not address any submissions in regard to the same). Article 99, as originally framed, contemplated two sets of rules: the first were intended for the authentication of orders and were thus formal in nature, as also mandatory. The second set was very important and served a dual purpose: (i) The first purpose was in relation to the allocation and transaction of business, and (ii) The second was to enable the convenient transaction of that business by the Federal Government by conferring on it the power to delegate any of its functions to officers or authorities. It is important to note, however, that the word “may”, connoting a discretionary element, was used in the original article. 40. The two critically important changes which have been made in the present formulation are:- (a) the power of delegation to officers and subordinate authorities has been taken away, and (b) the making of rules has been made mandatory. Two very significant inferences follow ineluctably from the changes. (i) The executive power of the Federal Government has now been channelized and the exercise thereof is to be through the mandatory modality of Rules of Business. These Rules are therefore binding on the Government and a violation of the terms thereof can be fatal to the exercise of executive power. It needs emphasizing that C.As.1428 to 1436 of 2016 -: 35 :- the conscious substitution of the word “may” by “shall” speaks to the intention of Parliament to leave no doubt in the matter. (ii) Whereas originally the Federal Government had the power to delegate any of its functions to officers or authorities i.e. it would have been possible to delegate functions pertaining to fiscal matters to the Finance Ministry; this is no longer possible. There is no discretion left in the Executive in relation to this. Obviously, the framers of the 18th Amendment felt so strongly about this that, notwithstanding, their reluctance to retain any vestiges of the 1985 Amendments, in this matter they preferred to retain the phraseology adopted in it. There has, therefore, been a radical re-structuring of the law. We will revert to this aspect of the matter below. 41. We may clarify, in relation to the first set of Rules, that they are merely intended to ensure that the genuineness of orders passed by the Federal Government cannot be questioned in any court once they have been authenticated in accordance with the Rules. However, and this is an important point, this does not mean that any or every order passed will be held to be valid merely because it has been authenticated. The scope of this provision is limited only to questions of formal authentication and, in each case, it would have to be independently determined whether or not the power exercised was in fact available and the exercise was validly made in accordance with law. 42. We are now in a position to examine the contents of the Rules of Business themselves. The present formulation of the Rules of Business dates back to 1973. A quick synoptic overview of the relevant Rules would not be out of place at this point of time. Rule 2, clause (iii) defines “business” as meaning all work done by the Federal Government. C.As.1428 to 1436 of 2016 -: 36 :- Then follows Rule 3 which relates to the allocation of business and clause (3) thereof provides that the business of Government shall be distributed among the various Divisions (i.e. the administrative units) in the manner indicated in Schedule-II. Rule 4 deals with the organization of Divisions and Rule 5 bears the heading “Transaction of Business”. It prescribes that no important policy decision is to be taken except with the approval of the Prime Minister. The responsibility of a Minister, as head of a Division, is to assist the Prime Minister in relation to the formulation of policy and also to keep him informed of any important cases disposed of by him. Subject to the above, a Minister is responsible for the policies of his Division. Clause (8) further clarifies that the business of a Division shall ordinarily be disposed of by, and under the authority of, the Minister in charge and Clause (9) lays down the responsibilities of the Secretary. Clauses (8) and (9) of Rule 5 insofar as relevant are reproduced below:- “(8) The business of the Division shall ordinarily be disposed of by, or under the authority of the Minister-in- Charge. (9) The Secretary shall – (a) assist the Minister-in-Charge in the formulation of policy; (b) duly execute the sanctioned policy; (c) submit all proposals for legislation to the Cabinet with the approval of the Minister; (d) Keep the Minister-in-Charge generally informed of the working of the Division and of any important case disposed of without reference to the Minister; (e) be the principal accounting officer of his Division, its Attached Departments and Subordinate Offices, and ensure that the funds controlled by him are spent in C.As.1428 to 1436 of 2016 -: 37 :- accordance with the rules laid down by the Finance Division; (f) Subject to the provisions of these rules and with the approval of the Minister-in-Charge issue standing orders laying down the manner of disposal of cases in the Division, including the distribution of work amongst the officers of his Division and such orders may specify the cases or class of cases which may be disposed of by an officer subordinate to him; and (g) be responsible for the careful observance of these rules and, where he considers that there has been any material departure from them, either in his own or any other division, he shall bring the matter to the notice of the Minister-in-Charge and, if necessary, to the notice of the Prime Minister or the Cabinet.” 43. Rule 6 reflects the constitutional concept of individual and collective responsibility and reads as under:- “6. Individual and collective responsibility. – The Cabinet shall collectively be responsible for the advice tendered to, or the executive orders issued in the name of the President whether by an individual Minister or as a result of decision by the Cabinet; but the Minister shall assume primary responsibility for the disposal of business pertaining to his portfolio.” Rule 7 provides that, subject to Article 173, all executive actions of the Government shall be expressed to be taken in the name of the President. Rule 12 renders consultation with the Finance Division mandatory in relation to matters which may involve the relinquishment, remission or assignment of revenue or expenditure for which no provision exists in the Budget. Rule 14 bears the heading “Consultation C.As.1428 to 1436 of 2016 -: 38 :- with the Law, Justice and Human Rights Division” and Clause (1) is material and is reproduced below insofar as relevant:- “14. Consultation with the Law, Justice and Human Rights Division. – (1) The Law, Justice and Human Rights Division shall be consulted – (a) on all legal questions arising out of any case; (b) on the interpretation of any law; (c) before the issue of or authorization of the issue of an order, rule, regulation, by-law, notification, etc. in exercise of statutory powers;” Rule 15 makes it mandatory to obtain the approval of the Prime Minister in relation to important policy matters. 44. Rule 16 is an important rule and, insofar as material, is reproduced below:- “16. Cases to be brought before Cabinet. – (1) The following cases shall be brought before the Cabinet :- (a) proposals for legislation, official or non-official, including money bills; (b) promulgation and revocation of Ordinances; (c) the budgetary position and proposals before the presentation of the Annual Budget Statement and a Supplementary Budget Statement or an Excess budget Statement under articles 80 and 84. (d) Proposals for levy, abolition, remission, alteration or regulation of any tax and floatation of loans; (e) to (m) (2) Notwithstanding the provisions of sub-rule (1), the Prime Minister may in any case give directions as to the manner of its disposal without prior reference to the Cabinet.” C.As.1428 to 1436 of 2016 -: 39 :- It will be noted, and this is relevant for purposes of the present matter, that it is mandatory to bring any proposal for the levy, abolition, remission, alteration or regulation of any tax to the Cabinet. Whilst it is no doubt true that the Prime Minister has been given discretionary power in the matter it is clear that the exercise thereof is circumscribed by the following conditions: (i) There must be a conscious application of mind by the Prime Minister to the existing circumstances justifying the need for this departure through passing of a reasoned and formal order prior to the action taken, and (ii) More critically, and definitively, a determination whether the constitutional provisions justify such a departure? This is a matter which we will examine infra. We note that, ex facie, this Rule has been violated by the Finance Division in issuing the impugned notification merely on the basis of the approval of the Secretary and the Advisor. This is a matter we will further discuss at a later stage in this judgment, when we will also consider the question of the constitutionality of Rule 16(2). 45. Rule 17 deals with the method of disposal of cabinet cases and is reproduced below: “17. Method of disposal of Cabinet cases. – (1) Cases referred to the Cabinet shall be disposed of – (a) by discussion at a meeting of the Cabinet; or (b) by circulation amongst Ministers; or (c) by discussion at a meeting of a committee of the Cabinet. Provided that the decisions of the Committee shall be ratified by the Cabinet unless the Cabinet has authorized otherwise.” C.As.1428 to 1436 of 2016 -: 40 :- The procedure for the submission of matters for decision making by the Cabinet is set out in Rule 18 and again is important. The relevant provisions thereof are reproduced below:- “18. Manner of submissions of Cabinet cases. (1) In respect of all cases to be submitted to the Cabinet, the Secretary of the Division concerned shall transmit to the Cabinet Secretary a concise, lucid and printed memorandum of the case (hereinafter referred to as the “summary”), giving the background and relevant facts, the points for decision and the recommendations of the Minister-in-Charge. In the event of the views of the Division being different from the views of the Minister both the views shall be included in the summary. Provided that the Executive Director, Higher Education Commission, shall be the ex-officio Federal Secretary and may submit summaries, or cases to cabinet directly with the approval of Chairman, Higher Education Commission, having the status of a Federal Minister. (note:- this proviso, however, has been deleted vide SRO 226(I)/2010 dated 2.4.2010) (2) In the case of a proposed legislation to which approval is sought in principle, the summary shall bring out clearly the main issues to be legislated upon. (3) The summary shall be self-contained as far as possible, not exceeding two printed pages and may include as appendices only such relevant papers as are necessary for the proper appreciation of the case. The number of copies of the summary and the form in which it is to be drawn up shall be prescribed by the Cabinet Secretary. (4) Where a case concerns more than one Division, the summary shall not be submitted to the Cabinet unless it has been considered by all the Divisions concerned. In the event of a difference of opinion between them, the points of difference C.As.1428 to 1436 of 2016 -: 41 :- shall be clearly stated in the summary, a copy of which shall be sent by the sponsoring Division to the other Division concerned simultaneously with the transmission of the summary to the Cabinet Division. (5) All draft Bills, Ordinances or Orders shall be submitted to the Cabinet after they have been scrutinized by the Law, Justice and Human Rights Division, and no changes shall be made therein except in consultation with that Division. (6) No case for inclusion in the agenda of a meeting of the Cabinet shall be accepted unless it reaches the Cabinet Secretary at least several clear days in advance of the meeting: Provided that, if a case is urgent and is required to be taken up at short notice, the Secretary concerned will obtain approval of the Prime Minister for its inclusion in the agenda before it is transmitted to the Cabinet Secretary. (7) It shall be the duty of the Cabinet Secretary to satisfy himself that the papers submitted by a Secretary are complete and in appropriate form. He may return the case until the requirements of the rules have been complied with. If the Cabinet Secretary is satisfied that the case does not merit consideration of the Cabinet he may advise the matter to be placed before an appropriate forum or require it to be submitted to the Prime Minister.” 46. The procedure to be followed in Cabinet meetings is set out in Rule 20 which prescribes that they are normally to be held once a week (we note, in passing, that it appears that presently this Rule is being honoured more in the breach than in the observance thereof. The political implications of this do not concern us here, but we will revert to the question of the constitutional implications flowing from decision making lacking the prior sanction of the Cabinet). It may be noted that it is not mandatory for the Prime Minister to preside at all meetings of the Cabinet. In this C.As.1428 to 1436 of 2016 -: 42 :- connection, reference may be made to Clauses (3) and (4) which are reproduced below:- “20. Procedure regarding Cabinet Meetings. (3) The Prime Minister may authorize the holding of Cabinet meetings during his absence. (4) The Prime Minister shall preside at all Cabinet meetings. In the absence of the Prime Minister a Minister nominated by the Prime Minister shall preside. The decisions taken in the Prime Minister’s absence shall be subject to the approval of the Prime Minister, unless the Cabinet feels that a particular case is so urgent that immediate action may be taken in anticipation of the Prime Minister’s approval.” Rule 20, clause (6) is an important provision and provides that no case shall be discussed in Cabinet, nor any issue raised, without a summary relating to it first being circulated. There is a proviso, in terms whereof this requirement may be dispensed with but for that purpose a formal order of the Prime Minister is required. What is significant about the above provisions is that they indicate that a mere formal consent of the Cabinet without following the detailed provisions in the Rules may render the decision open to question. The Cabinet, being the supreme body of the Executive, with a high constitutional status, cannot and ought not to be treated as a mere rubber stamp for decision making by the Prime Minister. Article 90 envisages a parliamentary form of Government which is based on decision making by the Cabinet. To turn the Cabinet into such a rubber stamp in pursuit of decision making by the Prime Minister to the exclusion of his Cabinet would violate the letter and spirit of our Constitution. That would be to reduce a cabinet form of government into a prime ministerial one which is a concept which is alien to the C.As.1428 to 1436 of 2016 -: 43 :- Constitution, as it stands at present. However, it should be noted in passing, that the original formulation of the constitution, was certainly more amenable to a greater construction of power in the hands of the Prime Minister (originally Article 48 of the constitution contained a clause stating that the orders passed by the President required for their validity the counter-signature of the Prime Minister. It is, on the face of it, a little difficult to reconcile this clause with the dignity and status of the head of state). We shall revert to this aspect of the matter later. 47. It will be recollected that the word “business” was defined in terms of Rule 2 to mean all work done by the Federal Government. This necessarily means that the concept of business of Government includes not merely executive matters but also those which pertain to legislation. This is borne out by the provisions of Part-E of the Rules which bears the heading “Legislation”. Rule 27 provides for official Bills relating to proposed legislation. The procedure envisages the involvement of the Law Division in relation to drafting and so forth. In all cases the draft Bill has to be put up before the Cabinet by the concerned Division for its approval. Even legislation of a formal nature forms the subject matter of the Rules and sub-clauses (7) and (8) of Rule 27 are relevant in this context. “(7) Legislation relating to the codification of substantive law or for the consolidation of existing enactments or legislation of a purely formal character, e.g., repealing and amending Bills and short title Bills, may be initiated in the Law, Justice and Human Rights Division. It shall, however, consult the Division concerned, if any, which shall consider the draft legislation from the administrative point of view and send their views to the Law, Justice and Human Rights Division. (8) After taking action in terms of sub-rule (5), the Division concerned shall forward to the Law, Justice and Human Rights C.As.1428 to 1436 of 2016 -: 44 :- Division the draft legislation in its final form with a statement of objects and reasons duly signed by the Minister-in-Charge. The Law, Justice and Human Rights Division, after satisfying itself that all legal requirements have been complied with for the introduction of the Bill in the Assembly or, as the case may be, the Senate, transfer the Bill along with the statement of objects and reasons to the Parliamentary Affairs Division for arranging its introduction in the appropriate House.” 48. Against the above backdrop we can now turn to the facts of the present case. As observed earlier, the appellants are importers of cellular phones and other goods. Certain exemptions from sales tax were granted to them by the Federal Government. They were then either withdrawn or the tax rates were modified in terms of different notifications issued pursuant to Sections 3(2)(b), 3(6), 8(1)(b), 13(2)(a) and 71 of the Act. These notifications relate to cellular phones. Similar notifications had been issued earlier in relation to textile goods and, once again, the exemptions granted were withdrawn and/or modifications took place in relation to the rates of sales tax. 49. The sole ground urged before us was that these notifications had not been issued by the Federal Government, as that term ought to be construed in the light of the constitutional provisions. We will, therefore, assume for purposes of the present case, that the notifications issued were otherwise in order and not open to any exception save and except in relation to the above point. 50. The importance of the Rules of Business cannot be understated within a constitutional framework. Although, generally speaking, it is correct to state that all rules are binding for, and in relation to, the powers thereby conferred on the Executive, this is especially so in the case of the Rules of Business. The concept of rules, C.As.1428 to 1436 of 2016 -: 45 :- as is obvious, is subsumed in subordinate or delegated legislation. It is an integral part thereof. All legislation is binding and should be acted upon. The Federal Government does not have the prerogative to follow, or not to follow, legislation, both primary as well as secondary or delegated, in its discretion. The authority to frame rules is normally conferred by an Act of Parliament. In the case of the Rules of Business this authority flows from the Constitution itself. As noted above, Clause (3) of Article 99 makes it mandatory for the Federal Government to make rules which cover two related sub-fields; firstly, for and in relation to the allocation of the business of the Government and secondly, for transacting the said business. This clause is to be read as essentially ancillary to the overarching concept of the rule of law. The Constitution confers vast powers on the Government for the transaction of executive business. There is no reason to suppose, or believe, that the framers of the Constitution intended, in disregard of the explicit language employed, that the Federal Government could, in its discretion, either follow, or not follow, the provisions of the Rules of Business. The framer of rules is as much bound by the content thereof as anyone else is subject thereto. These are basic precepts of constitutional interpretation. To allow the Executive to depart from the language of the Rules, in its discretion, would be to permit, and legitimize, unconstitutional executive actions. Quite independently of the above, there is ample case law stressing the importance of a structured exercise of discretionary power. In this case the discretionary executive powers have already been fettered by the Constitution. The framing of rules for this purpose is inextricably linked to the guided exercise of official power. The following of the Rules of Business is a salutary exercise intended to enhance, and amplify, concepts of good governance. We have no doubt that it is mandatory and C.As.1428 to 1436 of 2016 -: 46 :- binding on the Government, and so hold. A similar view was taken by this Court in the case of Ahmad Nawaz Shah7 (supra). 51. The argument is sometimes advanced, in order to defeat the language of subordinate legislation, that it is merely directory and not mandatory. It is necessary to emphasize the point that, in the normal course, there is no reason whatsoever why the language of rules should not be considered to be mandatory unless it is ex facie discretionary. The rules are framed to achieve a certain objective and to achieve this within the channels relating to the devolution and flow of statutory authority. In the absence of compelling reasons to the contrary all rules are, and should be considered to be mandatory and binding. The burden of proof lies on anyone asserting that the rules in question are directory and not mandatory. He must establish that there is a sound and powerful reason why they should not be considered mandatory and binding. This principle applies with redoubled force, for and in relation to two sets of rules; firstly, constitutionally mandated rules i.e. the Rules of Business, and secondly, rules framed under fiscal enactments. Constitutionally mandated rules are closely intertwined with the concept of good governance for and in the public interest. Allowing a departure therefrom would be detrimental to open and transparent forms of governance. If a government department admits that although it has violated explicit provisions of the rules, its violation should be condoned by treating the breach as non-actionable merely on the ground of its supposedly being directory, then surely serious questions arise in relation to the good faith of the department. In each and every case the presumption of law would be that the rules are mandatory and should be observed and followed. If, and only if, a compelling public interest is 7 2002 SCMR 560 C.As.1428 to 1436 of 2016 -: 47 :- established as a reason for non-compliance with the rules i.e. other than inadvertence, or negligence, or incompetence then, and only then, can the court consider whether or not to condone the breach in the observance of the rules. These considerations are fortified and amplified for, and in relation to, fiscal enactments. The reason is twofold; firstly Article 77 of the Constitution only enables the levy of tax under law and, secondly, the levy of a tax inevitably implies a restriction of a citizen’s right to property. Payments of tax amount to a corresponding deprivation of property and, since the right to property is a fundamental right, this can only be done by means of strict compliance with the law. It follows that the breach of Rule 16 is fatal to the case of the Government. Although this is sufficient to dispose of the case it is necessary that we should also clarify the constitutional position, for which it is necessary to revert to the concept of Federal Government. 52. Article 90, as pointed out above, states that the executive authority of the Federation shall be exercised in the name of the President by the Federal Government. The Federal Government is then described as “consisting of the Prime Minister and the Federal Ministers”. The question is, what is the precise interpretation of this provision? 53. The learned Additional Attorney General advanced, at some length, his submissions for, and in relation to, the concept of Federal Government as well as the allied concept of the executive authority of the Federation. He developed his argument by referring to Article 41 of the Constitution. The said article provides, in terms of Clause (1) thereof, that the President shall be the Head of State and shall represent the unity of the Republic. He then travelled to Article 48. Clause (1) of the said Article provides that, in the exercise of his functions, the President shall act on, and in accordance with, the advice of the Cabinet or the C.As.1428 to 1436 of 2016 -: 48 :- Prime Minister. Incidentally, at this point we may note, in passing, that the original formulation of Article 48(1) stipulated that the President was obligated to act on, and in accordance, with the advice of the Prime Minister and it was further added that such advice shall be binding on him. In brief, the importance and significance of the Cabinet which lies at the heart of the parliamentary form of Government, was downplayed in the original formulation and an alternate template of virtual prime ministerial rule was laid down. We have already referred to this aspect of the matter above. By means of the 8th Amendment to the Constitution Article 48 was reformulated into its present form so as to give primacy to the advice of the Cabinet and thus restore the Cabinet to a pristine position at the heart of the Executive. Reverting to the submissions of the learned counsel, he then developed his argument by contending that the definition of the Federal Government should now be considered to be the President along with the Cabinet headed by the Prime Minister. This argument certainly has the merit of novelty, if nothing else. 54. We are unable to agree with him. Article 90 states categorically what the Federal Government is; it consists of the Prime Minister and the Federal Ministers (i.e. the Cabinet) and not the President who is not mentioned therein (we note, in passing, the similarity with Articles 176 and 192 which respectively define the Supreme Court and the High Court as consisting of the Chief Justice and judges). We are unaware of any principle of constitutional interpretation which would allow us to construe Article 41 and Article 48, on the basis of a presumed intention, so as to override the explicit provisions of Article 90. Neither article purports to do so. The concept of the President being the Head of State should not be confused with the completely different concept of the Head of Government and nor should the two offices be conflated. Article 48 merely stipulates that, in the C.As.1428 to 1436 of 2016 -: 49 :- discharge of his functions, the President is mandated to act on, and in accordance with, the advice of the Cabinet or the Prime Minister. This article relates to the performance of the constitutional functions of the President by making it binding on him to follow the advice of the Cabinet. This is by no means the same as asserting that, by doing so, he becomes a part of the Federal Government. He is not. He is the Head of State. There are many functions of state which are discharged by different organs without their becoming part of the Federal Government. To take an obvious illustration; the judicial functions of the State, which lie at the heart of the rule of law, are discharged by the Supreme Court and the High Courts as well as such other courts as are established by law in terms of Article 175. By doing so they do not become part of the Federal Government (at least for purposes of the domestic law of the State). Article 175 does not in any manner qualify the position stated in Article 90. The concept of Head of State is distinct from that of head of government and remains as such. 55. In English constitutional law, which forms the bedrock on which the parliamentary form of government is based, the status of the sovereign has been developed over the years. In the classic tome “The Law of the Constitution” by A.V. Dicey (first published in 1886) there is a detailed exposition of the rule of English law which states that “the King can do no wrong.” The following passage is reproduced from page 24 of the 9th Edition:- “To the law of the constitution belong the following rules:- “The King can do no wrong.” This maxim, as now interpreted by the courts, means, in the first place, that by no proceeding known to the law can the King be made personally responsible for any act done by him; if (to give an absurd example) the King were himself to shoot the Premier through the head, no C.As.1428 to 1436 of 2016 -: 50 :- court in England could take cognizance of the act. The maxim means, in the second place, that no one can plead the orders of the Crown or indeed of any superior officer in defence of any act not otherwise justifiable by law; this principle in both its applications is (be it noted) a law and a law of the constitution, but it is not a written law. “There is no power in the Crown to dispense with the obligation to obey a law;” this negation or abolition of the dispensing power now depends upon the Bill of Rights; it is a law of the constitution and a written law. “Some person is legally responsible for every act done by the Crown.” This responsibility of Ministers appears in foreign countries as a formal part of the constitution; in England it results from the combined action of several legal principles, namely, first, the maxim that the King can do no wrong; secondly, the refusal of the courts to recognize any act as done by the Crown, which is not done in a particular form, a form in general involving the affixing of a particular seal by a Minister, or the counter- signature or something equivalent to the counter-signature of a Minister; thirdly, the principle that the Minister who affixes a particular seal, or countersigns his signature, is responsible for the act which he, so to speak, endorses; this again is part of the constitution and a law, but it is not a written law. So again the right to personal liberty, the right of public meeting, and many other rights, are part of the law. 56. In England the Government is often referred to as Her Majesty’s Government. Everything is done in the name of the sovereign, although the actual and effective power of the Crown is strictly limited. Hence the distinction between the sovereign and the Government. The Government is carried on in the name of the Crown. The courts of law are described as the Royal Courts of Justice although the Crown has no influence over them. In brief, the Crown is considered theoretically as the fountainhead of all authority and power. This goes back to the time when the monarch wielded absolute power and authority. C.As.1428 to 1436 of 2016 -: 51 :- 57. The underlying concept that government is to be carried on in the name of the President was borrowed from English constitutional practices as embodied in the Government of India Act, 1935, which was then followed in successive constitutional dispensations. However, formal terminology is one thing, the constitutional reality is another. Thus, under Articles 90 and 99 although all executive actions are to be expressed to be taken in the name of the President, this does not change the underlying reality. 58. The learned Additional Attorney General also submitted, in relation to the concept of “business”, as defined in Rule 2, that it includes both executive and legislative work. So far the argument is unexceptionable and we have no difficulty in accepting it. It is obvious that an important part of the functions of the Government relates to the formulation and initiation of legislative measures. Thus the Rules of Business must encompass both executive as well as legislative business. However, the inference drawn by him from this premise is not justifiable. There is a vast gulf between considering, or taking, policy decisions regarding legislative measures and the actual power to frame or enact legislation, whether primary or secondary. Although the overwhelming majority of legislation is proposed by the Government, which enjoys the majority to pass the same in parliament, the Executive, as such, cannot make laws. This is the legislative function. It is distinct from the executive function. Indeed, the Rules of Business themselves make this clear although the proposition is obvious even otherwise (we will separately deal with the ordinance making power of the State at a later stage of this judgment). 59. Part-E of the Rules of Business deals specifically with legislation. Rule 27 stipulates that the Division concerned shall be responsible for determining the contents of the proposed legislation and C.As.1428 to 1436 of 2016 -: 52 :- for consultation with other Divisions. Other rules further develop, and lay down, in some detail, the procedure to be adopted. All this is part of the legislative business which is governed by the Rules of Business. However, once the proposed legislation is finalized and then placed before the House, the powers of the Executive, as such, come to an end. The legislature takes over. It is inconceivable that on account of the fact that the Rules of Business cover legislative work they could also be deemed to confer power on the Executive to enact legislative measures. All statutory rules, including those of a fiscal nature, are subordinate legislation. The power to enact subordinate legislation has to be conferred by substantive law. The Rules of Business, which merely regulate procedural modalities, cannot conceivably do so. 60. His further argument that Rule 3(3) provides that the business of government is to be allocated to Divisions in accordance with Schedule-II, which in turn provides that tax policy and tax administration falls within the Revenue Division is, confined to that extent, and that extent alone, correct. It cannot be stretched any further, and it by no means follows that the Chairman, FBR, who is the ex officio Secretary of the Revenue Division is empowered, ipso facto under Rule 4(2) read with Rule 3(3) to issue notifications pertaining to modifications of tax merely because the subject falls within the scope of his responsibilities. The conferment of power, the exercise of power and the formal notification of the exercise of power are all independent (albeit interlinked) concepts. The Chairman FBR, in his capacity as Secretary to the Revenue Division can no doubt make proposals pertaining to modification of tax policy. He can either directly, or through his subordinate officials, process proposals. If the processing of tax proposals were, for example to be done by another Division that would C.As.1428 to 1436 of 2016 -: 53 :- quite clearly be illegal. However, his power does not extend any further. The power to make fiscal changes is a substantive power, and moreover, one of great constitutional importance. It has to be clearly spelt out from the scheme of the constitution and the language used in any enactment. The Rules of Business neither confer such a power, and nor can they, on any meaningful interpretation of the constitution, conceivably confer such a power. If the Rules of Business were to be amended to purportedly confer such a power, the amendment would be clearly ultra vires. 61. His reference to Rule 7(2), read with Schedule-IV which allows the Secretary to authenticate by signature all orders and other instruments made, or executed, in the name of President disregards the fact that this is a purely formal power. The exercise of this power establishes the genuineness of the document. It does not confer the statutory power to issue such a document. 62. The continuation of his argument to the effect that the Secretary sought, and obtained, the approval of the Advisor is equally flawed. Neither the Secretary, nor the Advisor, has any power to make subordinate or delegated legislation. This power has been conferred solely and exclusively on the Federal Government in terms of Section 3 of the Sales Tax Act. Indeed it could not have been conferred on any other subordinate authority, or body, without violating the Constitution. We have already noted that the constitutional power to delegate functions to officials or other authorities has been taken away. 63. It needs to be stressed, with clarity and precision, that the allocation of business, i.e. by whom, and how a matter is to be dealt with, is not equivalent to the grant of power. Allocation of business is merely a matter of inter-departmental procedure to indicate which C.As.1428 to 1436 of 2016 -: 54 :- Division of the Government is going to deal with a certain subject. The mere fact that a certain Division is going to deal with a specified subject does not confer any extra, or additional, constitutional or statutory powers on the said Division. In each and every case it has to be established as to what power has been conferred and in what manner it is to be exercised. Certain powers have been conferred under the Sales Tax Act. They have been conferred, and rightly so, on the Federal Government. The conferment of such a power on any other authority would have been clearly unconstitutional. Now it is up to the Federal Government to allocate, through the modality of the Rules of Business, which of the different Divisions is to deal with the matter. But this most emphatically does not mean that the Revenue Division has been transformed into the Federal Government. It has not. It remains what it always was. The concept of Federal Government is a foundational concept of the Constitution and must be interpreted and construed exactly as specified in Article 90. The Secretary of the Revenue Division has full power and authority to process a case relating to fiscal matters. Once he has processed it, he then has to forward it, in accordance with the normal constitutional channels, to the Federal Government, for decision. In other words, the decision would then be taken by the Cabinet comprising of the Prime Minister and the Ministers. The mere fact that the Secretary of the Revenue Division has processed the case does not elevate his status to that of the Federal Government. 64. The above clarification is further fortified by the language of Article 97 of the Constitution which is reproduced below:- “97. Extent of executive authority of Federation. --- Subject to the Constitution, the executive authority of the Federation shall extend to the matters with respect to which [Majlis-e- C.As.1428 to 1436 of 2016 -: 55 :- Shoora (Parliament)] has power to make laws, including exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan. Provided that the said authority shall not, save as expressly provided in the Constitution or in any law made by [Majlis-e- Shoora (Parliament)], extend in any Province to a matter with respect to which the Provincial Assembly has also power to make laws.” It will be noted that this Article lays down the extent of the executive authority of the Federation i.e. the powers of the Federal Government. It begins with the qualifying phrase “subject to the Constitution”, which is significant, for reasons to be explained below, and goes on to state that the executive authority of the Federation is coterminous with Parliament’s power to make laws. The exercise of both powers falls within a congruent sphere. If Parliament can make laws about a certain matter, the Federal Government can take executive action in relation thereto. The executive authority of the Federation vests in the Federal Government and it can operate within the corresponding legislative sphere. However, it should be noted that it is the Federal Government – as constitutionally defined - which is the repository of this executive power and no one else. Article 99 carries the argument logically forward by stating that all executive actions of the Federal Government (and no one else) are expressed to be taken in the name of the President. The use of the phrase “subject to the constitution” in Article 97 indicates that the executive authority of the Federation, as exercised by the Federal Government, is subordinated to the constitutional schema in relation to the conferment of constitutional powers and responsibility on the three great organs of the State. It would be recollected that all executive actions of the Federal Government are expressed to be taken in C.As.1428 to 1436 of 2016 -: 56 :- the name of the President. It is not the actions of the Secretary, or head of a Division, as such, but the executive actions of the Federal Government which are to be taken in the name of the President. 65. We now turn to a consideration of the status of “subordinate authorities” which is a matter dealt with in Article 98. This article provides that, on the recommendation of the Federal Government, Parliament may, by law, confer functions upon officers, or authorities, subordinate to the Federal Government. It is reproduced below:- “98. Conferring of functions on subordinate authorities. – On the recommendation of the Federal Government, [Majlis-e- Shoora (Parliament)] may by law confer functions upon officers or authorities subordinate to the Federal Government.” 66. This article, read contextually with the other relevant articles, envisages a multi-stage procedure. Each stage has to be strictly complied with. The sequence of developments is as follows:- (i) The original concept in Article 90 (which now stands restored to its initial configuration) was that the executive authority of the Federation was to be exercised in the name of the President by the Federal Government. (ii) The Federal Government was defined to be the Prime Minister and the Federal Ministers (i.e. the Cabinet). (iii) The Cabinet was to act through the Prime Minister who was to be the Chief Executive. (iv) The Prime Minister could act directly or through Federal Ministers. (v) This hierarchical exercise of powers was stated to be subject to the constitution i.e. the exercise of C.As.1428 to 1436 of 2016 -: 57 :- governmental power was subjected to the constitutional provisions in their totality. This obviously postulates a referential base of a parliamentary democracy with the Cabinet at the heart of the Executive. (vi) In 1985 a radical change was made in Article 90 by vesting the totality of executive authority in the President instead of the Federal Government i.e. the Cabinet. The flow of authority was then the following: (a) The President now became the constitutional repository of all executive authority. (b) He could exercise this authority, either directly or through officers subordinate to him (this would obviously include the exercise of power through ministers). (c) There was no delegation of power as such. When powers were exercised by officials it was, in the eye of law, the President acting through them. (d) The effective restraint on the President was that power was to be exercised in accordance with the constitution. This, therefore, restored the power of the Cabinet, albeit by a rather circuitous route. However, the formulation as a whole, was really a reversion to the structure of the Government of India Act, 1935 which we have already discussed above. (vii) By the 18th Amendment the original language of Article 90 was restored, but other changes were also made. When it came to Article 99, which in its original formulation, conferred the power on the Federal Government to delegate its functions to subordinate officials, this power was not restored. It is, however, important to bear in mind that in the original constitution the power to delegate was purely discretionary. It could be exercised, or not exercised, C.As.1428 to 1436 of 2016 -: 58 :- at the will of the Government. In actual practice it was perhaps rarely exercised. It follows from the above that the mere taking away of a discretionary power to delegate does not make any substantial difference to the exercise of constitutional power as matters stand at present. It is important to note that designated functions can only be conferred on officers or authorities who are subordinate to the Federal Government. They cannot, for example, be conferred on private entities or companies. Official power can only be exercised through official channels. However, as is obvious, even the passing of a law to such effect would not elevate the status of officers of the Federal Government and enable them to be treated as the Federal Government itself. Furthermore, this provision very clearly does not contemplate the transfer of legislative powers of any nature whatsoever to subordinate officials. All it permits is the discharge of certain functions by designated officials. The transfer of legislative powers would be a clear cut violation of the structure of the constitution and the concept of separation of powers. We are, therefore, unable to agree with the contention of the learned Additional Attorney General in this behalf. Neither the constitutional provisions, nor the Rules of Business, confer power on a Secretary or head of a Division, to be treated as the Federal Government. Contrary to what he has submitted, the phrase “subject to the constitution” used in Article 90 was not intended to differentiate the extent of the executive authority of the Federation from that as set out in Article 99. Both articles are to be read in conjunction with each other and not in opposition thereto. There is no conflict between the two articles which requires resolution by reference to the phrase “subject to the constitution”. Article 99 supplements the contents of Article 90. C.As.1428 to 1436 of 2016 -: 59 :- 67. He has, however, correctly contended that the levy of tax is the function of Parliament under Article 77 of the Constitution and the regulation and issuance of fiscal notifications is in the nature of subordinate legislation. He has further, again correctly, contended that such powers, if given to the Executive per se, would amount to a negation of the doctrine of parliamentary supremacy and the doctrine of separation of powers. Both these propositions are valid and make the distinction between executive and legislative power clear. 68. We may now refer to the provisions of the Pakistan Telecommunication (Re-Organization Act), 1996 to which reference was made by the learned Additional Attorney General to buttress his submissions. While it is perfectly true, as stated by him, that the said Act does contain a definition of the Federal Government as being the Ministry of Information Technology and Telecommunication we have no doubt about the fact that a statutory definition must yield before the provisions of the Constitution of Pakistan. These provisions, as discussed above, leave no doubt in the matter as what the term Federal Government means. It means the Prime Minister and the Ministers. Hence, this statutory definition is clearly violative of Article 90 of the Constitution and, therefore, is ultra vires. 69. There was a sharp difference of opinion between the learned Additional Attorney General and the learned amicus appearing in the matter as to the meaning of the phrase “executive authority”. The learned Additional Attorney General submitted that the executive power of the state was the residue of legislative and judicial power. In support of his contention he relied on English parliamentary practice in terms of which, although initially all powers were concentrated in the monarch, they were gradually subjected to the rule of law which implied that legislative C.As.1428 to 1436 of 2016 -: 60 :- and judicial powers were essentially surrendered to parliament and the judiciary. Thus the executive power left with the Crown was essentially a residuary power. The executive power of the Crown was further modified with the passage of time. He has, in support of his submissions relied on Rai Sahib’s8 case (supra) as reaffirmed in two subsequent decisions of the Indian Supreme Court. Paragraph 12 of the former judgment is reproduced below:- “It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way. The executive Government, however, can never go against the provisions of the Constitution or of any law. This is clear from the provisions of Article 154 of the Constitution but, as we have already stated, it does not follow from this that in order to enable the executive to function there must be a law already in existence and that the powers of the executive are limited merely to the carrying out of these laws.” 70. As against the above contention, the learned amicus contended that the argument that the executive power is the residual 8 AIR 1955 SC 549 = (1955) 2 SCR 225 C.As.1428 to 1436 of 2016 -: 61 :- power is fallacious. He relied on various decisions in support of his contention. According to him, the executive authority is set out in the constitution and is the administration of the Government in accordance with law. 71. In our opinion the difference between the two learned counsel is largely semantic in nature. One has traced the origin of executive power in the light of the history of the parliamentary form of government which indicates that although the sovereign enjoyed powers which were originally an amalgam of executive, legislative and judicial power, but gradually with the passage of time it is the executive power alone which has remained with the government of the day. The Constitution of Pakistan, which essentially accepts the separation of all power into three broad divisions (albeit without a formal statement to this effect) by treating legislative, executive and judicial powers separately arrives at the same conclusion, not as a historical process but on an analytical plane. Both paths converge. The conclusion in both cases is the same. There is no conflict between the two approaches; one is predicated on the evolutionary process while the other is descriptive of the culmination of that process in the form of three separate categories of power in terms of the present constitution. 72. It should, however, be clarified that the above noted division of power which is sometimes referred to as the trichotomy of powers, is not rigidly adhered to in our Constitution. The term is in that sense somewhat misleading. The parliamentary form of government essentially envisages a broad categorization of power but not the erection of rigid walls of separation. The distinction is of great significance jurisprudentially. There are no impassable barriers between the different types of power. There is often an overlapping or blurring of boundaries. C.As.1428 to 1436 of 2016 -: 62 :- The executive also exercises some legislative powers while the judiciary is not entirely devoid of other forms of power including the power to make rules. A rigid division, or separation, is sometimes to be found in presidential forms of government although there too, in practice, there is often some blurring of boundaries. In this connection, reference may be made to the opening sections of Articles 1, 2 and 3 of the Constitution of the United States which are reproduced below:- Article I “Section 1 All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Article II Section 1 The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice-President, chosen for the same term, be elected, as follows…. Article III Section 1 The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The Judges, both of the Supreme and inferior Courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.” 73. At this point we can conveniently revert to the question of the constitutional classification of the ordinance making power. We should note, at the very inception, that this question raises formidable issues of interpretation. It is located in Article 89, and is only exercisable under clause (1) thereof when the National Assembly or Senate are not in C.As.1428 to 1436 of 2016 -: 63 :- session. This provision by itself gives a hint as to the nature of the power. Clause (2) then follows and is reproduced below:- “(2) An Ordinance promulgated under this Article shall have the same force and effect as an Act of Majlis-e-Shoora (Parliament) and shall be subject like restrictions as the power of Majlis-e-Shoora (Parliament) to make law, but every such Ordinance- (a) shall be laid- (i) before the National Assembly if it contains provisions dealing with all or any of the matters specified in clause (2) of Article 73, and shall stand repealed at the expiration of one hundred and twenty days from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution: Provided that the National Assembly may by a resolution extend the Ordinance for a further period of one hundred and twenty days and it shall stand repealed at the expiration of the extended period, or if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution: Provided further that extension for further period may be made only once; and (ii) before both Houses if it does not contain provisions dealing with any of the matters referred to in sub-paragraph (i), and shall stand repealed at the expiration of one hundred and twenty days from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by either House, upon the passing of that resolution: and Provided that either House may by a resolution extend it for a further period of one hundred and twenty days and it shall C.As.1428 to 1436 of 2016 -: 64 :- stand repealed at the expiration of the extended period, or if before the expiration of that period a resolution disapproving it is passed by a House, upon the passing of that resolution: Provided further that extension for a further period may be made only once; (b) may be withdrawn at any time by the President. (3) without prejudice to the provisions of clause (2),- (a) an Ordinance laid before the National Assembly under subparagraph (i) of paragraph (a) of clause (2) shall be deemed to be a Bill introduced in the National Assembly; and (b) an Ordinance laid before both Houses under sub- paragraph (ii) of paragraph (a) of clause (2) shall be deemed to be a Bill introduced in the House where it was first laid.” The following characteristics of an ordinance may be noted:- (i) It has “the same force and effect as an Act of Parliament.” It is important to note a subtle distinction at this point. The language does not state that an ordinance is an Act of Parliament. It also, more importantly, does not state that it is to be deemed an Act of Parliament – it only has the same force and effect as an Act of Parliament. This distinction is important from the jurisprudential point of view. It raises a taxonomic issue of importance. (ii) It is mandatory that it be laid before Parliament. The reason is obvious – we are now in the constitutionally mandated legislative field. (iii) It shall stand repealed on the expiry of 120 days (unless extended) i.e. it is not that it shall be repealed (since only Parliament can repeal a law), nor that it shall be deemed to be repealed (since the word repeal is limited in its application to an Act of Parliament and an ordinance is not deemed to be an Act of Parliament). It follows necessarily C.As.1428 to 1436 of 2016 -: 65 :- that an ordinance falls into an anomalous category, all by itself. (iv) The question is, how is an ordinance to be classified? Is it legislative in nature? Or, is it executive in nature? Or, is it quasi-legislative? In order to resolve this issue it is imperative to bear a crucial jurisprudential distinction in mind. This is the distinction between the nature of a constitutional power and the person who is exercising it. These are conceptually distinct matters. This distinction points the way forward to resolving the issue. 74. The nature of the power is clearly legislative, since it contemplates a change, or alteration, in the corpus of laws in the country. Thus there is no ambiguity on this point. It is not quasi- legislative. The other, essentially independent, although inter-linked, question is as to who is exercising this power. The answer is the Executive. However, this mere fact will not transform the nature, or classification, of the power. The power to make laws is ex hypothesi a legislative power irrespective of who is exercising it. Clause (2) of Article 260 further corroborates this inference by explicitly providing that Act of Parliament includes an ordinance. However, it has to be added that the legislative drafting of the above provisions is by no means free from ambiguity since it should not be forgotten that Article 89 has already declared that an ordinance is to be deemed to be a bill pending in Parliament. The question is, how can an ordinance (i.e. an Act of Parliament) be at the same time a bill pending in Parliament? The only way to resolve this dilemma is to hold that for purposes of Article 89, it is deemed to be a Bill pending in Parliament, which, however, is to be treated as having the same force and effect as an Act of Parliament and Article 260 is C.As.1428 to 1436 of 2016 -: 66 :- merely a brief re-statement of the position, although set out in a different terminology. 75. We may now deal with the submission of the learned amicus to the effect that previously there was no concept of the Federal Government. He has developed this argument by referring to Article 39(1) of the Constitution of 1956 which stipulates that the executive authority shall vest in the President, and that he may exercise the same either directly or through officers subordinate to him. He has stressed the fact that this article does not mention the Federal Government at all. He has contrasted this with the language of Article 90 to contend that it follows that there was previously no concept of Federal Government. This is clearly erroneous, both factually as well legally. The implied conclusion that a parliamentary form of government can exist without a government is inconceivable. The word government, in its normal connotation, is equivalent to the term Executive. It is one of the three principal organs of the State. Contrary to his contention, the term Federal Government has been explicitly used in the constitution of 1956 and indeed it is hardly possible that it could not have been used. Part-IV of the said Constitution bearing the heading “The Federation” sets out the title of Chapter-I as being “The Federal Government”. Article 41 of the constitution explicitly deals with the Federal Government. The said Article is reproduced below:- “41. Conduct of business of the Federal Government. -- (1) All executive actions of the Federal Government shall be expressed to be taken in the name of the President. (2) The President shall by rules specify the manner in which orders and other instruments made and executed in his name shall be authenticated, and the validity of any order or instrument so authenticated shall not be questioned in any C.As.1428 to 1436 of 2016 -: 67 :- court on the ground that it was not made or executed by the President. (3) The President shall also make rules for the allocation and transaction of the business of the Federal Government.” 76. His further contention that the concept of collective responsibility which is found in Article 91(6) of the present Constitution (as well as in Article 37(1) and (5) of the Constitution of 1956) was absent in the Constitution of 1973, as originally enacted, and was only introduced for the first time by means of the amendments made in 1985, is equally erroneous. If reference is made to Article 90 clause (3)9 of the 1973 Constitution, as originally enacted, it will be found that this concept is clearly set out therein. 77. At this stage we may also clarify another confusion. This is in relation to the concept of delegation of power. It was contended before us that in the Constitution of 1973, as originally enacted, the Federal Government was empowered to delegate its functions to officers and authorities. It was further contended that in 1985 the provisions of Article 99 were amended and the power of delegation was taken away. The contention was that the concept of delegation contained in the original constitution does not exist anymore and hence that officers exercise executive authority on behalf of the Federal Government as opposed to acting in delegation of such powers. The implied inference that the taking away of the power of delegation by itself amounts to the conferment of power to act directly through someone is certainly not justified. There has to be an independent conferment of power. It needs to be clarified that there is a significant conceptual distinction between the exercise of power through a designated person and the delegation of 9 90(3), “The Prime Minister and the Federal Ministers shall be collectively responsible to the National Assembly”. C.As.1428 to 1436 of 2016 -: 68 :- powers to him. If reference is made to the provisions of the 1973 Constitution, as enacted originally, it will be seen that Article 90(1) explicitly stated two things. Firstly, it was stated that the executive authority of the Federation was to be exercised in the name of the President. This is merely a question of nomenclature and nothing substantial turns on it. The mere fact that the executive authority was to be exercised in the name of the President does not amount to an explicit conferment of powers either on the President or anyone else. It is the further statement in Article 90 to the effect that the executive authority shall be exercised by the Federal Government consisting of the Prime Minister and the Federal Ministers which creates conferment of constitutional power. This power is conferred on the Prime Minister and the Federal Ministers who are authorized to act through the Prime Minister who is to be the chief executive of the Federation. This is a direct conferment of power on the constitutional plane. The question of delegation arises, however, when powers are transferred from one person to another person and is constitutionally and analytically quite distinct from the exercise of power by one person through another person (in a delegation of power, there is a transfer of power from the donor to the donee). By way of illustration (but only of illustration, since the constitutional position in England is distinguished from that prevailing in Pakistan) we may refer to the position in England, as set out in Halsbury’s Laws of England (4th edition) on page 748, which is reproduced below: “748. Ministers of the Crown and local authorities. Where functions entrusted to a minister are performed by an official employed in the minister’s department there is in law no delegation because constitutionally the act or decision of the official is that of the minister. Similarly where a local authority appoints a committee for the discharge of certain of C.As.1428 to 1436 of 2016 -: 69 :- its functions, the committee is merely machinery for the discharge by the authority of the business entrusted to the committee all of whose acts are subject to the authority’s approval.” 78. At this stage it would be convenient to also deal with the position of the Prime Minister. He was, and still is, described as the Chief Executive. This formulation is unknown to all the prior constitutions. It was introduced in 1973 but no definition was given of the term. His powers and responsibilities accordingly have to be determined on the basis of the overall structuring of power in the constitution. The concept of a Chief Executive is a familiar one in corporate law. The Companies Ordinance, 1984 contains a definition of the term, but, as is obvious, this was not in force in 1973 and so one cannot infer that the legislature had the statutory definition in mind when using the term Chief Executive (prior to the enactment of the Companies Ordinance, 1984, the Companies Act, 1913, was in force and it was customary at that time to appoint a managing director under the articles of association). Even otherwise, it would be manifestly inappropriate, both analytically as well as historically, to equate the position of a Head of Government with that of an executive head of a limited liability company engaged in protecting the financial interests of his shareholders. Furthermore, the powers of a corporate chief executive, at present, are statutorily conferred and defined, while no such definition exists in the constitution. Accordingly, we set aside this analogical mode of reasoning and proceed to discuss the matter solely on the basis of the language used which, as stated above, lacks clarity and precision. 79. We begin with the postulate that the constitutional definition of Federal Government under Article 90 is absolutely clear in its scope and ambit – it means the Prime Minister and the Federal Ministers, C.As.1428 to 1436 of 2016 -: 70 :- which, in turn, means the Cabinet. The Cabinet is a composite concept and its components are the Prime Minister and the Federal Ministers. Together they constitute the Cabinet. Article 91, as it stands at present, bears the heading “The Cabinet”, and restates the same proposition from a slightly different perspective. Under Article 90 it was posited that the executive authority was to be exercised by the Federal Government i.e. the Cabinet. But, it was added that the Cabinet was to exercise the executive authority in the name of the President. In brief, the executive authority of the state was to be exercised by the Cabinet, as a collective entity, in the name of the President. Another way of articulating this proposition, is to state that whatever the Cabinet did was to be described not as its action but the action of the President. Article 91 then re-states this, and amplifies it, by placing it within a different framework by positing that the function of the Cabinet is to aid and advise the President. In either case, the actions would be of the Cabinet but in the name of the President. The central role in both theoretical formulations is played by the Cabinet which is, in fact, a re-description of the Federal Government. The Prime Minister is the head of the Cabinet but he can neither supplant it nor replace it. In Article 90 he is described as the Chief Executive while in Article 91 his description is that of the Head of the Cabinet. He is the single most important person in the Cabinet, but he does not stand in the position of the Cabinet. He is neither a substitute nor a surrogate for the Cabinet. He cannot exercise its powers by himself. The reason that he cannot stand in the position of the Cabinet is because the Cabinet is, in fact, the Federal Government and is so described in article 90. If we treat the office of the Prime Minister as being equivalent to that of the cabinet, it would follow that the Prime Minister, by himself, as a single individual, becomes the Federal Government. This is simply inconceivable. C.As.1428 to 1436 of 2016 -: 71 :- It is the antithesis of a constitutional democracy and would amount to a reversion to a monarchical form of Government reminiscent of King Louis XIV’s famous claim that “I am the State” (literally “L’etat, c’est moi”). It is most emphatically not the function of this court to surrender the hard won liberties of the people of Pakistan to such a fanciful interpretation of the constitution which would be destructive of all democratic principles. We have no doubt in rejecting it, in its entirety. It follows from the above that Rule 16(2) which enables the Prime Minister to dispose of matters by by-passing the Cabinet is ultra vires and it is so declared. 80. It only remains, in this context, to examine what precisely is the meaning to be assigned to the term Chief Executive and it is to this that we now turn. Article 90, as stated above, describes the Prime Minister as Chief Executive and contemplates the Cabinet acting through him. Clause (2) of Article 90 adds that he may act either directly or through Federal Ministers. This is his discretionary choice. From the above the logical inference follows that the function of the Chief Executive is to execute and implement the policy decisions taken by Cabinet i.e. the Federal Government. He executes policy decisions, he does not take them by himself. The executive function, even on a literal basis, is to execute or implement decisions. On this interpretation the whole structure now falls into place. The Prime Minister cannot take decisions by himself, or by supplanting or ignoring the Cabinet because the power to take decisions is vested with the Federal Government i.e. the Cabinet, and unilateral decisions taken by him would be a usurpation of power. As our parliamentary system of government is based on the British system it would be more useful to relate the term ‘Chief Executive’ to the British concept of the Prime Minister as “primus inter pares” or a first among equals. The Rules of Business, if they carry, or C.As.1428 to 1436 of 2016 -: 72 :- imply, a different impression, must yield to the superior mandate of the Constitution. The decisions of the Federal Government are the decisions of the Cabinet and not of the Prime Minister. Any decisions taken by the Prime Minister on his own initiative lack the authority of the law or the Constitution. 81. The above views are buttressed by the provisions of Article 91(6) which provide that the Cabinet shall be “collectively responsible to the Senate and the National Assembly”. It should be noted that it is not the Prime Minister by himself who is responsible to Parliament. It is the body known as the Cabinet, which is collectively responsible. It follows that to allow him to act on his own would enable him to escape from responsibility to Parliament for the consequences of his actions, which cannot conceivably be the intention of the constitution. The underlying substratum of any representative form of government is to link acceptance of responsibility with the exercise of power. This principle applies across the board. It applies with special force in relation to fiscal or budgetary matters. He cannot make fiscal changes on his own and nor can he engage in discretionary spending by himself. Furthermore, the Prime Minister is not constitutionally mandated to authorize expenditure on his own. In all cases the prior decision of the Cabinet is required since it is unambiguously that body alone which is the Federal Government. All discretionary spending without the prior approval of the Cabinet is contrary to law. We clarify that an ex post facto approval by the Cabinet will not suffice since money once spent cannot be unspent. An attempt to confront the court with a fait accompli by contending that since the money has already been spent it should be regularized is unacceptable. Any provisions of the Rules of Business to the contrary are ultra vires since there is no constitutional provision to justify them. It appears that, C.As.1428 to 1436 of 2016 -: 73 :- at the bare minimum, an Act of Parliament would have to be passed to grant retrospective approval for the illegal expenditure (we leave aside for consideration on another occasion the question of constitutionality of such a law). Such a law would have to set out the full particulars of the illegal spending, from time to time, to enable Parliament to consider the advisability of validating the expenditure and to try and bring it in line with normal constitutional principles. It would of course have to be passed by the National Assembly as well as the Senate since it would not be a normal money bill. 82. What is the procedure to be followed, in case the need arises for unforeseen spending. The answer is to be found in Article 84 of the Constitution which is reproduced below:- “84. Supplementary and excess grants: If in respect of any financial year it is found – (a) that the amount authorized to be expended for a particular service for the current financial year is insufficient, or that a need has arisen for expenditure upon some new service not included in the Annual Budget Statement for that year; or (b) that any money has been spent on any service during a financial year in excess of the amount granted for that service for that year; The Federal Government shall have power to authorize expenditure from the Federal Consolidated Fund, whether the expenditure is charged by the Constitution upon that Fund or not, and shall cause to be laid before the National Assembly a Supplementary Budget Statement or, as the case may be, an Excess Budget Statement, setting out the amount of that expenditure, and the provisions of Articles 80 to 83 shall apply to those statements as they apply to the Annual Budget Statement.” C.As.1428 to 1436 of 2016 -: 74 :- Once again, it would be noted that the power has been conferred not on the Prime Minister but the Federal Government i.e. the Cabinet. Similarly, Article 85 confers power, not even on the Federal Government, but on the National Assembly to make a grant in advance for a period not exceeding 4 months pending completion of the budgetary procedure laid down in Article 82, and Article 86 confers a similar power on the Federal Government but only during the period when the National Assembly stands dissolved. Clause (3) of Article 82 explicitly states that no demand for a grant shall be made except on the recommendation, not of the Prime Minister, but of the Federal Government i.e. the Cabinet. What are the powers of the Prime Minister in relation to such matters? They are set out in Article 83 and are confined to a mere authentication of the grants made by signing a schedule setting them out. These provisions are clearly articulated and must not be violated in any circumstances. This court has already dealt with the question of the constitutionality of discretionary spending by the Prime Minister in the case reported as Action against distribution of development funds by Ex-Prime Minister Raja Pervaiz Ashraf (PLD 2014 SC 131) paragraph 52 of which reads as follows: “52. For the foregoing reasons it is held as under:- (1) The National Assembly, while giving assent to a grant which is to be utilized by the Executive at its discretion, has to follow the procedure provided in Articles 80 to 84 of the Constitution as well as the Rules of Procedure, 2007. However, such discretionary grant cannot be spent at the absolute discretion of the Executive C.As.1428 to 1436 of 2016 -: 75 :- and the discretion has to be exercised in a structured manner; (2) The Constitution does not permit the use/allocation of funds to MNAs/MPAs/Notables at the sole discretion of the Prime Minister or the Chief Minister. If there is any practice of allocation of funds to the MNAs/MPAs/Notables at the sole discretion of the Prime Minister/Chief Minister, the same is illegal and unconstitutional. The government is bound to establish procedure/criteria for governing allocation of such funds for this purpose; (3) Though funds can be provided for development schemes by way of supplementary grant but for that purpose procedure provided in Articles 80 to 84 of the Constitution and the rules/instructions noted hereinabove has to be followed strictly; (4) Funds can be allocated by way of re- appropriation but the procedure provided in the Constitution and the rules has to be followed in its true perspective; (5) No bulk grant can be made in the budget without giving detailed estimates under each grant divided into items and that every item has to be specified; (6) The amounts as approved in the budget passed by the National Assembly have to be utilized for the purpose specified in the budget statement. Any re-appropriation of funds or their utilization for some other purpose, though within the permissible limits of the budget, are not justified. In such circumstances, the supplementary budget statement has to be place before the Parliament following the procedure provided in Articles 80 C.As.1428 to 1436 of 2016 -: 76 :- to 84 of the Constitution and the rules/instructions noted hereinabove.” It follows from the above that any discretionary spending at the initiative of the Prime Minister alone is manifestly unconstitutional and contrary to law. This illegality will continue until such time when, at the very least, the procedure set out in paragraph 66 above is adopted and followed. Failure to do so would mean that the Prime Minister would remain personally responsible. 83. Having decided the questions of law on the plane of principle we now turn to a brief consideration of the case law. A large number of cases were cited before us. Many of them were only peripherally relevant or merely contained generalized propositions of law or stray observations. A number of Indian authorities were also cited before us, some of which dealt with some similar issues. We were referred to a series of seven cases decided by the Indian Supreme Court. These included the cases of B.K. Sardari Lal (supra) and Samsher Singh (supra). However, we noted that the latter judgment explicitly overruled the view expressed in the former case. In fact, the latter case was explicitly taken up by a larger bench for the express purpose of re-considering the earlier view. We have not found it necessary to discuss those cases either since it would merely prolong this judgment. There is, however, one case to which we would like to make specific reference since it is a decision of the Federal Court. In the case of Afzal Bangash10 (supra) the Court had occasion to consider the provisions of the NWFP Public Safety Act, 1948. The facts of the case were that the Court of the Judicial Commissioner struck down the order of detention which had been passed by the Chief Minister which, according to him, was without jurisdiction and ultra vires. The Judicial 10 PLD 1956 FC 1 C.As.1428 to 1436 of 2016 -: 77 :- Commissioner was of the opinion that in respect of matters as important as the liberty of the subject, the responsibility of curtailing that liberty by means of an executive order was intended by the Constitution to rest upon the Governor and his Ministers and not the Chief Minister alone. Under the Act in question the duty of satisfaction regarding the existence of the conditions necessary for the making of an order of detention rested upon the Provincial Government. His view was that the use of the term provincial government implied the Governor conducting the affairs of the government of a Province as aided and advised by his Council of Ministers. In doing so he followed the views expressed by the Federal Court in the case of Emperor Vs. Sibnath Banerji and others (AIR 1943 FC 75). He, apparently inadvertently, omitted to note that the decision of the Federal Court in that case had been set aside by the Judicial Committee of the Privy Council (reported in 72 IA 241). In arriving at his conclusion the Judicial Commissioner placed a strangely limited interpretation on the phrase “business of the provincial government”. He arbitrarily restricted the definition of the word “business” to confine it only to day to day and routine work of the Government. He considered matters relating to the liberty of a subject as being of such great importance as not to fall within the said term. This was rather surprising since, on the face of it, there is no reason to exclude important matters from the “the business of the provincial government.” The Federal Court had no difficulty in setting aside his views, basing itself on the earlier decision of the Privy Council. The admitted facts were that under the Rules of Business the Chief Minister had been allocated the subject of preventive detention (quite apart from an office memorandum to the said effect as well). The order passed by the Chief Minister clearly fell within the ambit of the relevant provisions of the C.As.1428 to 1436 of 2016 -: 78 :- Government of India Act, 1935 and the Rules of Business made under Section 59. The discussion deals with this aspect of the matter alone and not the wider constitutional issues and hence is distinguishable. 84. We may now summarize our conclusions:- (i) The Rules of Business, 1973 are binding on the Government and a failure to follow them would lead to an order lacking any legal validity. (ii) The Federal Government is the collective entity described as the Cabinet constituting the Prime Minister and Federal Ministers. (iii) Neither a Secretary, nor a Minister and nor the Prime Minister are the Federal Government and the exercise, or purported exercise, of a statutory power exercisable by the Federal Government by any of them, especially, in relation to fiscal matters, is constitutionally invalid and a nullity in the eyes of the law. Similarly budgetary expenditure, or discretionary governmental expenditure can only be authorized by the Federal Government i.e. the Cabinet, and not the Prime Minister on his own. (iv) Any Act, or statutory instrument (e.g. the Telecommunication (Re- Organisation) Act, 1996) purporting to describe any entity or organization other than the Cabinet as the Federal Government is ultra vires and a nullity. (v) The ordinance making power can only be exercised after a prior consideration by the Cabinet. An ordinance issued without the prior approval of the Cabinet is not valid. Similarly, no bill can be moved in Parliament on behalf of the Federal Government without having been approved in advance by the Cabinet. The Cabinet has to be given a reasonable opportunity to consider, deliberate on and take decisions in relation to all proposed legislation, including the Finance Bill or Ordinance or Act. Actions by the Prime Minister on his own, in this regard, are not valid and are declared ultra vires. C.As.1428 to 1436 of 2016 -: 79 :- (vi) Rule 16(2) which apparently enables the Prime Minister to bypass the Cabinet is ultra vires and is so declared. (vii) Fiscal notifications enhancing the levy of tax issued by the Secretary, Revenue Division, or the Minister, are ultra vires. (it is clarified, in passing, that this court has in the past consistently held that a greater latitude is allowed in relation to beneficial notifications and that principle still applies). (viii) In consequence of the above findings the impugned notifications are declared ultra vires and are struck down. Prior to concluding this judgment we would like to express our appreciation for the valuable assistance provided by the learned counsel who have appeared in this matter. We are grateful to each one of them. 85. In view of the above by accepting these appeals and while setting aside the impugned judgment(s), all the writ petitions filed by the appellants are allowed. JUDGE JUDGE JUDGE Announced in open Court on 18.8.2016 at Islamabad Approved For Reporting Ghulam Raza/*

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{'id': 'C.A.1428_2016.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Anwar Zaheer Jamali Mr. Justice Umar Ata Bandial CIVIL APPEAL NO. 1440 OF 2007 (On appeal from the judgment/order dated 16.05.2001 passed by Lahore High Court, Lahore, in Civil Revision No.713-D/1989) Dausa & others … … Appellants. Versus Province of the Punjab, etc. … … Respondents. For the appellants : Mr. S.M. Tayyab, ASC. For respondents (1-2) : Mr. Muddassar Khalid Abbasi, DAG Pb. Mr. Zafar Iqbal, Patwari Halqa. For the respondents : Mr. Muhammad Munir Peracha, ASC. (4-10 & 13-16) L.Rs. of Respondents (3, 11, 12) : Ex-parte. Date of hearing : 16.06.2015. JUDGMENT: UMAR ATA BANDIAL, J. – The leave granting order dated 31.07.2007 notes the appellants’ (“plaintiffs”) contention that their predecessors mortgaged their land in favour of evacuee mortgagees vide registered mortgage deed dated 22.12.1882 (Exb.P-16). This transaction was duly entered in the revenue record vide mutation No.4 dated 05.05.1887. However, by a clerical mistake, the plaint in the suit has pleaded such mortgage to have been created in the year 1914. Therefore, the claimed redemption of mortgage vide mutation No.2 dated 17.06.1913 was rejected by the learned Appellate and the learned Revisional Courts as being contradictory and destructive of the plaintiffs’ claim. Accordingly, leave was granted to consider, inter alia, the effect of the registered mortgage deed dated 22.12.1882 (Exb.P-16) upon the outcome of the appellants’ plea for declaration of title of the mortgaged land. 2. The plaintiffs filed a suit on 04.11.1986 in the Court of Senior Civil Judge, Sargodha seeking declaration of title in respect of land measuring 71 Kanals CA.1440/2007. 2 3 Marlas situate in village Jhumat Ranjhayan Wala, Tehsil Bhalwal, District Sargodha (‘suit land’). The plaintiffs are the progeny of Taja son of Karam and of Babal son of Sahba (grandson of Karam). Taja, Sahba and Samand sons of Karam mortgaged the suit land to evacuee mortgagees under a registered deed of mortgage dated 22.12.1882. Rather implausibly, the plaint claims that the said mortgage was created in the year 1914-15 but on the contrary, it rightly claims that this mortgage was redeemed vide mutation No.2 dated 17.06.1913. However, redemption of the mortgage was not reflected in the periodical revenue record. The mutation No.1999 dated 12.04.1971 (“impugned mutation”) was entered to record the resumption of the mortgaged suit land by the Central Government under the Displaced Persons (Land Settlement) Act, 1958. The prayer in the suit is for the impugned mutation to be declared illegal and void. The judgment of the learned Trial Court dated 25.06.1988 upheld the redemption of mortgage by the plaintiffs but dismissed their suit as being time barred for the relief prayed. The learned Appellate Court, however, noticed the contradiction in the plaint about the date of redemption of the mortgage being prior to the date of its creation. Vide judgment dated 12.12.1988 the learned Appellate Court dismissed the plaintiffs’ appeal by holding that a mortgage cannot be redeemed before it is created; therefore the case set up in the plaint was self destructive. This was affirmed on 16.05.2001 by the learned Revisional Court which also held that the mutation No.1999 dated 12.04.1971 was valid. 3. The learned counsel for the appellants has referred to Exb.P-16 which is a copy of the mortgage deed dated 22.12.1882 registered in the record of the Sub- Registrar, Bhera, executed by Taja, Sahba and Samand, the three sons of Karam, in favour of evacuee mortgagees. The corresponding mutation No.4 dated 05.05.1887 incorporating the mortgage in the revenue record is also part of Exb.P-16. Although the said document was exhibited on record by the plaintiffs yet they made no effort before any of the learned three Courts below to amend the plaint in order to correct the pleaded date of mortgage of land by their predecessors. However, finally by an application bearing C.M.A. No.3811-L of 2006 filed before this Court under Order V CA.1440/2007. 3 Rule 2(8) of the Supreme Court Rules, 1980, the plaintiffs have sought to amend the plaint for incorporating therein the correct date of creation of mortgage on the basis of the said Exb.P-16. 4. The written statement filed in the Trial Court by the respondents (“defendants”), who are respectively the Provincial Government and the successors of the Settlement and Rehabilitation Commissioner, namely, the Notified Officer (Senior Member, Board of Revenue, Government of Punjab), acknowledges/admits that mortgage of half the suit land was indeed redeemed vide mutation No.2 dated 17.06.1913, which is duly reflected in the Jamabandi for the year 1915-18. The written statement further states that the remaining half of the suit land has remained subject to mortgage. It is averred that after the lapse of 60 years, the right of redemption of the mortgage has become time barred; consequently, the suit land has vested in the government. Therefore, the impugned mutation No.1999 dated 12.04.1971 is rightly recorded. 5. The learned counsel for the parties have been heard. The learned counsel for the appellants/plaintiffs has also filed written arguments to elaborate his submissions. The learned Assistant Advocate General has filed a concise statement on behalf of the Provincial Government which aptly explains the position on record. These materials and the record have been perused. 6. A reading of the record and the three judgments of the learned Courts below reveals the cursory manner in which the parties, namely, the plaintiffs on the one hand and the government defendants on the other hand, dealt with the controversy in issue before the learned Trial Court. Quite apart from the factual error in the pleadings which is sought to be rectified by an amendment application filed by the plaintiffs before this Court, the pleadings of the parties are silent about, inter alia, the terms of the mortgage, tracing the plaintiffs’ succession from the three mortgagors, the particulars and the area of the mortgaged land that is in their possession. Although the written statement by the Provincial Government specifically mentions that only half of the mortgaged suit land stands redeemed but possession of the entire suit land by the plaintiffs is not denied. However, no CA.1440/2007. 4 evidence on the particulars of the redeemed land is available on record. The defendants were proceeded ex-parte by the learned Trial Court before recording of evidence. 7. The submissions made by learned counsel before us, the evidence on record and the written submissions filed by the learned counsel in Court establish consensus between the parties that in 1882 three sons of Karam, namely, Taja, Sahba and Samand jointly mortgaged their land in favour of evacuee mortgagees (Ex.P- 16). The successors of Babal son of Sahba and the successors of Malli son of Taja are plaintiffs in the suit. Sahba had three other sons, namely, Ditta, Jallo and Shabul, who died issueless; so also did Samand son of Karam, the third mortgagor. This detail is available from the pedigree table of the plaintiffs attached to the statements filed in Court by the learned counsel for both the parties before us. The redemption mutation No.2 dated 17.06.1913 records redemption by Ditta, Jallo and Shabul, the issueless sons of Sahba. According to the said mutation, the predecessors of the plaintiffs, namely, Babal and Malli did not redeem their share of the suit land under mortgage and nor did Samand, the third mortgagor. Accordingly, there is another error in the suit, namely, whilst the plaintiffs claim rights pursuant to redemption mutation No.2 dated 17.06.1913, in fact it is the shares of Ditta, Jallo and Shabul, who are not plaintiffs, that have been redeemed under the said mutation. This is significant because the plaint does not claim the plaintiffs to be the only heirs of the redeeming mortgagors. In the resulting scenario, the plaintiffs lack locus standi for the relief of declaration of title of the redeemed land prayed in the suit. Also, the plaintiffs as successors of the non-redeeming mortgagors have not sought redemption of their share in the mortgaged land. This appeal, therefore, prima facie, lacks potential for any relief. 8. There are, however, two legal developments that have taken place during the pendency of the lis. These impact the outcome of the controversy. It is noted that the impugned mutation No.1999 dated 12.04.1971 has by operation of law resumed the proprietary rights of the mortgaged land in favour of the government. With regard to such resumption of land, the judgment of this Court CA.1440/2007. 5 given in the case of Samar Gul v. Central Government (PLD 1986 SC 35) has laid down that under the Displaced Persons (Land Settlement) Act, 1958 the proprietary interest that is liable to transfer in favour of the Central Government is the right of evacuee mortgagees in mortgaged land and not the ownership rights of such land. It is also held that a memorandum dated 08.12.1959 issued by the Chief Settlement and Rehabilitation Commissioner constitutes an acknowledgment of the existence of a mortgage of land to evacuee persons within the terms of Section 19 of the Limitation Act, 1908. This communication has been held to renew the period of limitation for redemption of mortgage under Article 148 of the Limitation Act, 1908 by another 60 years. The said memorandum directs the field officers to issue notices to Muslim landowners/mortgagors to redeem their mortgages or else the evacuee mortgagee rights in their mortgaged land would be put to auction. The consequence of the ruling in Samar Gul’s case (supra) is that straightaway the impugned mutation resuming title of the mortgaged suit land in favour of the government is rendered illegal. At best only the evacuee mortgagee rights in the suit land could have been resumed. Consequently, the impugned mutation divesting the appellants/plaintiffs of their title in the suit land is illegal and void. However, the said title remains subject to the mortgagee interest in favour of the government. 9. In the light of the above facts, the Court has endeavored to construe the case of the parties in the light of the pleadings, available evidence on the record and the law applicable to the controversy which involves the interest of evacuee mortgagees. Due to a wrong date of creation of mortgage on the suit land given in the plaint, a reasonable factual plea in the suit based on the redemption mutation No.2 was rendered futile. It is noted that the document Exb.P-16 (comprising the registered mortgage deed dated 22.12.1882 and mutation No.4 dated 05.05.1887) clarifies the confusion about the creation of the mortgage and cures the contradiction in the suit. Moreover, Exb.P-16 is an admitted document by the respondents and belongs to the official record. It is therefore, both genuine and reliable. The actual date of creation of the mortgage which is evidenced by the document Exb.P-16 is consistent with the plea of mortgage of the suit land taken in CA.1440/2007. 6 the plaint. The amendment application (C.M.A. No.3811-L of 2006) by the appellants/plaintiffs for incorporating the correct date of the mortgage in the plaint does not alter the nature of the case pleaded by the plaintiffs. The prayer for the incorporation of an undisputed fact is of a formal nature and brings factual clarity which promotes the fair adjudication of the controversy and the interest of justice. Compliance with the said criteria satisfies the principles for allowing amendment in pleadings even by the highest Court. [Ref: Ghulam Nabi vs. Nazir Ahmad (1985 SCMR 824); Secretary to Government (West Pakistan) vs. Abdul Kafil (PLD 1978 SC 264)]. The C.M.A. No. 3811-L of 2006 for the amendment prayed is accordingly allowed. 10. As a result of the amendment, the finding duly recorded by the learned Appellate Court and the learned Revisional Court that a self destructive case has been setup by the plaintiffs is rendered redundant. What remains in the field is the learned Trial Court’s finding that the suit is time barred. It is contended on behalf of the appellants/plaintiffs that the registered mortgage deed (Exb.P-16) provides for repayment of the mortgage amount of Rs.500/- by 4 Poh 1937 (Jan, 1937). Ordinarily, the limitation period of 60 years under Article 148 of the Limitation Act, 1908 for redemption of mortgage reckoned from that date ends roughly in the year 1997. However, the legal rule laid down in Samar Gul’s case (supra), the memorandum extends the limitation period for the redemption of a mortgage created in favour of evacuee mortgagees or their successors, the Settlement Commissioner/Notified Officer until 07.12.2019. Accordingly, a suit for redemption of the unredeemed land may competently be filed by the plaintiffs until that date. 11. With respect to half the mortgaged land that was redeemed by Ditta, Jallo and Shahbul, the three issueless sons of Sahba under the mutation No.2 dated 17.06.1913 (Exb.P-16), the plaintiffs have brought no evidence on the record to establish their locus standi as the only successors of the three issueless redeeming mortgagors. From the agreed pedigree table of the redeeming mortgagors that is available on record, it appears that the plaintiffs may have entitlement as collaterals CA.1440/2007. 7 of the redeeming mortgagors. However, the impleadment of all entitled successors of the redeeming mortgagors in the suit, the ascertainment of the veracity of the entries in the cultivation column of Intikhab Misl Bandobast of the Mouza from 1911-1912 to 1962-1963 (Exb.P-1 to Exb.P-12) showing the possession of the mortgaged land with the successors of the redeeming mortgagors and deciding any third party interest that may have crept over the suit land would be necessary for adjudicating the title of the redeemed mortgaged land prayed in the suit. Since neither of the said aspects of the case have been dealt with by the learned Courts below, it is appropriate that the matter be remanded to the learned trial Court for deciding after allowing the parties to amend their pleadings, if desired and leading fresh evidence. This is without prejudice to our finding that according to the law declared in Samar Gul’s case (PLD 1986 SC 35) the impugned mutation No.1999 dated 12.04.1971 is illegal and void. The respondents are entitled to hold the interest of evacuee mortgagees in the suit land for which requisite correction shall be made in the relevant revenue record of Mouza in which the suit land is situate. For the foregoing discussion, this appeal is partly allowed. No order as to costs. J. J. Announced in Court at Islamabad, On 19.04.2016. J. APPROVED FOR REPORTING.

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE FAISAL ARAB MR. JUSTICE IJAZ UL AHSAN CIVIL APPEAL NO.1447 OF 2016 CRL. ORIGINAL PETITION NO.220 OF 2016 IN CIVIL APPEAL NO. 1447 OF 2016 (Against the order dated 16.2.2016 of the High Court of Sindh at Karachi passed in Spl.H.C.A.No.2/2016) Gulistan Textile Mills Ltd. In C.A.1447/2016 Soneri Bank Ltd. In Cr.O.P.220/2016 …Appellant(s)/Petitioner(s) VERSUS Soneri Bank Ltd. In C.A.1447/2016 Naseer Ahmed In Cr.O.P.220/2016 …Respondent(s) For the Appellant(s): Mr. Salman Aslam Butt, Sr. ASC Syed Rifaqat Hussain Shah, AOR (In C.A.1447/2016) Ms. Sofia Saeed, ASC Mr. Tariq Aziz, AOR (In Cr.O.P.220/2016) For the Respondent(s): Ms. Sofia Saeed, ASC Mr. Tariq Aziz, AOR (In C.A.1447/2016) Mr. Salman Aslam Butt, Sr. ASC Syed Rifaqat Hussain Shah, AOR (In Cr.O.P.220/2016) Date of Hearing: 2.1.2018 JUDGMENT MIAN SAQIB NISAR, CJ.- The facts pertaining to this appeal, with the leave of the court, are that the respondent (bank) filed a suit for recovery and sale of pledged stocks under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (Ordinance) before the learned Banking Court pursuant to which the appellant (customer/borrower) filed its application for leave to defend, which is currently pending adjudication. During the course of proceedings in the suit, the respondent filed an application Civil Appeal No.1447 of 2016 -: 2 :- (C.M.A. No.11483/2012) inter alia seeking the sale of the goods allegedly pledged in favour of the respondent, which was dismissed by the learned Banking Court vide order dated 16.4.2013: on the ground that such application was premature as the application for leave to defend was yet to be decided and the respondent’s apprehension regarding misappropriation of goods was unfounded since the keys of the godown were with the muccadam and additionally a status quo order passed in a civil suit filed by the appellant, against inter alia the respondent, before the learned Lahore High Court, was in the field and stood in the way of grant of said application. This order remained unchallenged and has since attained finality. Thereafter, the respondent filed another application (C.M.A. No.16530/2015), again inter alia, seeking the same relief as in its previous application. This second application was allowed by the learned Banking Court vide order dated 4.12.2015 (the appellant was proceeded against ex-parte and this order was an ex-parte order) primarily on the ground that the goods in question were likely to be devalued and this happenstance necessitated sale. The appellant unsuccessfully challenged this impugned order before a Division Bench of the learned High Court and thereafter approached this Court. Leave was granted on 13.5.2016 in the following terms:- “Learned counsel for the petitioner states that per the provisions of Section 16 of the Financial Institutions (Recovery of Finances) Ordinance, 2001, the learned Banking Court has no jurisdiction to direct the sale of the goods belonging to the petitioner allegedly pledged with the respondent-bank. It is further argued that on account of the specific provisions ibid the general law envisaged by Civil Appeal No.1447 of 2016 -: 3 :- Order 39 Rule 6 of the CPC empowering the sale of security by the court as an interim measure shall not be available or invoked. It is further submitted that the goods for which the sale has been directed by the learned Banking Court are not the ones which are pledged with the respondent-bank, rather those are hypothecated. There is an earlier application filed by the respondent-plaintiff for the sale of the property which has been rejected, thus the principle of res judicata shall be applicable. Reliance in this behalf is placed upon Messrs Lanvin Traders, Karachi Vs. Presiding Officer, Banking Court No.2, Karachi and others (2013 SCMR 1419). Leave is granted to consider the above.” 2. Learned counsel for the appellant submitted that the respondent admitted in its replication (paragraph No.16) to the application for leave to defend that the security was not pledged but rather hypothecated, and having so admitted it cannot take advantage of Section 176 of the Contract Act, 1872 which allows a pawnee to sell pledged and not hypothecated goods. Further, he stated that interim sale of goods is not permitted by the Ordinance. In this respect he referred to and read out the provisions of Sections 7, 16, 19 and 23 of the Ordinance. According to the learned counsel, the purpose of Section 16 of the Ordinance is to preserve property and the legislature’s intent is revealed by the use of the word ‘preventing’ therein. Section 16(4) specifically saves sub-sections (1) and (3) and additionally the powers under Order XXXVIII Rule 5 and 6 of the Code of Civil Procedure, 1908 (CPC) have also been bestowed upon the Banking Court with regard to property which may not form a part of the Civil Appeal No.1447 of 2016 -: 4 :- security mentioned in Section 16(1) of the Ordinance. According to him, whatever powers the legislature wanted to bestow upon the Banking Court have been specifically mentioned in Section 16. Learned counsel submitted that Section 23(2) of the Ordinance does not give the power to sell, whereas Section 19(3) specifically provides for sale, therefore wherever the legislature wanted to give the Banking Court the power to sell, it did so expressly. He went on to argue that although the Banking Courts have been given the powers of a Civil Court under the CPC by virtue of Section 7 of the Ordinance, the use of the words “subject to the provisions of this Ordinance…” in sub-section (1) thereof means that where specific provisions in the special law, i.e. the Ordinance, cater to a particular situation the general law would cede. Learned counsel for the appellant further contended that the second application for sale of allegedly pledged goods filed by the respondent was barred by the principle of res judicata which also applied to applications. In this respect he relied upon the judgment reported as Hashir Ahmad Vs. Kamaluddin etc. (1981 SCMR 1180). He further stated that the appellant did not receive notice of the second application filed by the respondent and was therefore not heard when the impugned order dated 4.12.2015 was passed. He argued that the learned Division Bench of the Banking Court failed to advert to/decide this question relating to the said application as the same was decided without giving an opportunity of hearing to the appellant. 3. On the other hand, learned counsel for the respondent referred to various documents including the plaint filed by the respondent, letters, reports and orders of the Official Assignee in order to establish that the goods were in fact pledged and not Civil Appeal No.1447 of 2016 -: 5 :- hypothecated. With respect to the respondent’s apparent admission in their replication to the application for leave to defend that the goods were hypothecated and not pledged, she averred that it was simply a typographical error. Learned counsel further submitted that the circumstances surrounding the filing of both the applications were different, in that with respect to the second application, the keys were no longer with the muccadam leading to the apprehension that the goods were likely to be misappropriated which in turn justified sale of the goods vide order dated 4.12.2015. 4. Heard. It is pertinent to mention at the very outset that throughout this opinion, we have deliberately refrained from commenting or adjudicating upon the factual aspect as to whether the goods in question were pledged or hypothecated as this would involve a detailed factual exercise and determination in a matter arising out of an interlocutory order, which in turn would have a direct impact on the suit filed by the respondent and the application for leave to defend filed by the appellant, pending before the Banking Court. In order to determine whether the Banking Court has the power to direct interim sale of goods under the provisions of Section 16 of the Ordinance we find it expedient to briefly discuss the history and purpose of banking laws in Pakistan. Initially the resolution of banking disputes was by means of filing a civil suit, with the CPC governing the proceedings. In 1978, a special law was enacted; the Banking Companies (Recovery of Loans) Ordinance, 1978 (Ordinance of 1978) which created Special Courts and moreover provided a special procedure for the disposal of matters pertaining to banking companies and recovery of loans which fell within the ambit of the Civil Appeal No.1447 of 2016 -: 6 :- said Ordinance. It was followed by the Banking Companies (Recovery of Loans) Ordinance, 1979 which repealed and re- enacted with certain modifications the Ordinance of 1978. Thereafter, the Banking Tribunals Ordinance, 1984 (Ordinance of 1984) was promulgated which created the Banking Tribunals and provided a machinery for recovery of finances provided by banking companies. Then the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Ordinance, 1997 which eventually culminated into the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 (Act of 1997) created the Banking Courts to resolve disputes pertaining to defaults in terms of fulfilling of their obligations by the customer, borrower or banking company as defined by the said Act. Finally, the Financial Institutions (Recovery of Finances) Ordinance, 2001 was promulgated which repealed and re-enacted with certain modifications the Act of 1997. The aforementioned banking statutes in general and the Ordinance in particular were essentially enacted to be complete and comprehensive codes. This special law postulates the procedure for the resolution of disputes between financial institutions and customers pertaining to recovery of finances falling within the domain of the Ordinance. A special triumvirate of jurisdiction has been conferred upon the Banking Courts created by the Ordinance : territorial, party based and subject matter based. Territorial jurisdiction refers to the geographical reach to which the jurisdiction of the Banking Court is extended (Sections 1(2) and 5 of the Ordinance). With respect to parties, the Banking Courts only have jurisdiction over a matter which involves a financial institution and a customer (Section 9(1) of the Ordinance), and both terms have been defined in Sections 2(a) and Civil Appeal No.1447 of 2016 -: 7 :- (c) of the Ordinance respectively. The subject matter over which the Banking Courts have jurisdiction is the default (by a customer or financial institution) in fulfillment of any obligation with regard to any finance (Section 9(1) of the Ordinance), where the terms finance and obligation have been defined in Sections 2(d) and (e) of the Ordinance respectively. Undoubtedly the jurisdiction of the Banking Courts is special and exclusive and this is bolstered by Section 7(4) of the Ordinance which provides as follows:- “Subject to sub-section (5), no Court other than a Banking Court shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Banking Court extends under this Ordinance, including a decision as to the existence or otherwise of a finance and the execution of a decree passed by a Banking Court.” 5. It is in this backdrop that we proceed to examine the various provisions of the Ordinance, the relevant parts whereof are reproduced below for ease of reference:- Financial Institutions (Recovery of Finances) Ordinance, 2001 “7. Powers of Banking Courts.-(1) Subject to the provisions of this Ordinance, a Banking Court shall: (a) in the exercise of its civil jurisdiction have all the powers vested in a civil Court under the Code of Civil Procedure, 1908 (Act V of 1908); (b) …………………………………………… Civil Appeal No.1447 of 2016 -: 8 :- (2) A Banking Court shall in all matters with respect to which the procedure has not been provided for in this Ordinance, follow the procedure laid down in the Code of Civil Procedure, 1908 (Act V of 1908), and the Code of Criminal Procedure, 1898 (Act V of 1898). (3) …………………………………………… (4) …………………………………………… (5) …………………………………………… (6) …………………………………………… (7) …………………………………………… 16. Attachment before judgment, injunction and appointment of Receivers.-(1) Where the suit filed by a financial institution is for the recovery of any amount through the sale of any property which is mortgaged, pledged, hypothecated, assigned, or otherwise charged or which is the subject of any obligation in favour of the financial institution as security for finance or for or in relation to a finance lease, the Banking Court may, on application by the financial institution, with a view to preventing such property from being transferred, alienated, encumbered, wasted or otherwise dealt with in a manner which is likely to impair or prejudice the security in favour of the financial institution, or otherwise in the interest of justice (a) restrain the customer and any other concerned person from transferring, alienating, parting with possession or otherwise encumbering, charging, disposing or dealing with the property in any manner; (b) attach such property; Civil Appeal No.1447 of 2016 -: 9 :- (c) transfer possession of such property to the financial institution; or (d) appoint one or more Receivers of such property on such terms and conditions as it may deem fit. (2) An order under sub-section (1) may also be passed by the Banking Court in respect of any property held benami in the name of an ostensible owner whether acquired before or after the grant of finance by the financial institution. (3) In cases where a customer has obtained property or financing through a finance lease, or has executed an agreement in connection with a mortgage, charge or pledge in terms whereof the financial institution is authorized to recover or take over possession of the property without filing a suit, the financial institution may, at its option: (a) directly recover the same if the property is movable; or (b) file a suit hereunder and the Banking Court may pass an order at any time, either authorising the financial institution to recover the property directly or with the assistance of the Court: Provided that in the event the financial institution wrongly or unjustifiably exercises the direct power of recovery hereunder it shall be liable to pay such compensation to the customer as may be adjudged by the Banking Court in summary proceedings to be initiated on the application of the customer and concluded in thirty days. Civil Appeal No.1447 of 2016 -: 10 :- (4) Nothing in sub-sections (1) to (3) shall affect the powers of the Banking Court under Order XXXVIII Rules 5 and 6 of the Code of Civil Procedure, 1908 (Act V of 1908) to attach before judgment any property other than property mentioned in sub-section (1). 19. Execution of decree and sale with or without intervention of Banking Court.-(1) 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. Particulars of the mortgaged, pledged or hypothecated property and other assets of the judgment-debtor shall be filed by the decree-holder for consideration of the Banking Court and the case will be heard by the Banking Court for execution of its decree on the expiry of 30 days from the date of pronouncement of judgment and decree: Provided that if the record of the suit is summoned at any stage by the High Court for purposes of hearing an appeal under section 22 or otherwise, copies of the decree and other property documents shall be retained by the Banking Court for purposes of continuing the execution proceedings. (2) …………………………………………… (3) In cases of mortgaged, pledged or hypothecated property, the financial institution may sell or cause the same to be sold with or without the intervention of the Banking Court either by public auction or by inviting sealed tenders and appropriate the proceeds towards total or partial satisfaction Civil Appeal No.1447 of 2016 -: 11 :- of the decree. The decree passed by a Banking Court shall constitute and confer sufficient power and authority for the financial institution to sell or cause the sale of the mortgaged, pledged or hypothecated property together with transfer of marketable title and no further order of the Banking Court shall be required for this purpose. (4) Where a financial institution wishes to sell mortgaged, pledged or hypothecated property by inviting sealed tenders, it shall invite offers through advertisement in one English and one Urdu newspaper which are circulated widely in the city in which the sale is to take place giving not less than thirty days time for submitting offers. The sealed tenders shall be opened in the presence of the tenderers or their representatives or such of them as attend: Provided that the financial institution shall be entitled in its discretion, to purchase the property at the highest bid received. (5) …………………………………………… (6) …………………………………………… (7) Notwithstanding anything contained in the Code of Civil Procedure 1908 (Act V of 1908), or any other law for the time being in force: (a) the Banking Court shall follow the summary procedure for purposes of investigation of claims and objections in respect of attachment or sale of any property, whether or not mortgaged, pledged or hypothecated, and shall complete such investigation within 30 days of filing of the claims or objections; Civil Appeal No.1447 of 2016 -: 12 :- (b) if the claims or objections are found by the Banking Court to be malafide or filed merely to delay the sale of the property, it shall impose a penalty upto twenty percent of the sale price of the property. (c) the Banking Court may, in its discretion, proceed with the sale of the mortgaged, or pledged or hypothecated property if, in its opinion the interest of justice so require: Provided that…………………………” (Emphasis added) Code of Civil Procedure, 1908 “Order XXXIX Rule 6. Power to order interim sale.—The Court may, on the application of any party to a suit, order the sale, by any person named in such order, and in such manner and on such terms as it thinks fit, of any movable property being the subject- matter of such suit or attached before judgment in such suit, which is subject to speedy and natural decay, or which for any other just and sufficient cause it may be desirable to have sold at once.” In case of a suit for the recovery of any amount through sale of property which has been pledged, hypothecated, etc. in favour of a financial institution as security for finance (or for or in relation to a finance lease), Section 16 of the Ordinance empowers a Banking Court to pass an order before judgment, upon an application by the financial institution, to prevent such property from being transferred, alienated, encumbered, wasted or otherwise dealt with in a manner which is likely to impair or prejudice the security in Civil Appeal No.1447 of 2016 -: 13 :- favour of the financial institution or otherwise in the interests of justice. The types of orders that the Banking Court could pass are provided for in Section 16(1) of the Ordinance:- it may (a) restrain the customer (and any other concerned person) from transferring, alienating, parting with possession or otherwise encumbering, charging, disposing or dealing with the property in any manner; (b) attach the property; (c) transfer possession of such property to the financial institution; and (d) appoint one or more Receivers of such property on such terms and conditions as it may deem fit. Section 16(2) of the Ordinance empowers the Banking Court to pass similar orders to those mentioned in Section 16(1) ibid with respect to any property held benami in the name of an ostensible owner. Where movable property is concerned, Section 16(3) allows for direct recovery by a financial institution in cases where a customer has obtained property/financing through a finance lease or in those situations where the financial institution has been authorized to recover or take over possession of the property without filing a suit. The relevant provision for the purposes of the instant case is Section 16(1) of the Ordinance, a plain reading of which makes clear that the Banking Court does not have any power to sell goods which are pledged, hypothecated etc. prior to passing of the judgment in a suit for recovery through sale filed by the financial institution. The qualified powers given to the Banking Courts in this respect have been specifically mentioned in parts (a) to (d) of Section 16(1) of the Ordinance which are essentially orders of restraint, attachment, transfer of possession and appointment of Receiver(s). Section 16 ibid can be compared with Section 19 of the Ordinance, which provides for execution of decree and sale. In Civil Appeal No.1447 of 2016 -: 14 :- juxtaposition with Section 16, Section 19(3) has specifically used the words sell/sold with respect to mortgaged, pledged or hypothecated property in terms of what the financial institution (with or without the intervention of the Banking Court) may do for the purposes of total or partial satisfaction of the decree. The use of the word sell in this Section [and the failure to use it in section 16 ibid] is indicative of the fact that the legislature used such word only where it intended that sale be permitted. Thus the legislature has permitted a financial institution to sell goods only after it has attained a decree in its favour, for total or partial satisfaction thereof. Therefore, we are sanguine in our view that the absence of the words sale or sell (or any variant thereof) coupled with the specificity of the types of orders that a Banking Court can pass under Section 16, speaks to the legislative intent; that sale not be permitted during the pendency of a suit for recovery by sale before the Banking Court. 6. This brings us to a discussion of Section 7 of the Ordinance. Sub-section (1) part (a) of Section 7 ibid provides that in exercise of its civil jurisdiction a Banking Court shall have all the powers vested in a Civil Court under the CPC. One may argue that since, in exercise of its powers under the CPC, a Civil Court is empowered to pass an order for interim sale of property, furnished as security to a financial institution, before the final determination of the case under Order XXXIX Rule 6 of the CPC or whilst exercising its inherent jurisdiction under Section 151 of the CPC, therefore by virtue of Section 7(1)(a), which is legislation by reference, the Banking Court too would possess such power. This view is incorrect because according to the principle of harmonious interpretation the special law would take precedence over the Civil Appeal No.1447 of 2016 -: 15 :- general law (generalia specialibus non derogant). The Ordinance is a special law, and therefore its specific provisions will displace the general law which shall be deemed to be inapplicable. Reference in this regard may be made to the judgment reported as Neimat Ali Goraya and 7 others Vs. Jaffar Abbas, Inspector/Sargeant Traffic through S.P., Traffic, Lahore and others (1996 SCMR 826). This position is also supported in Section 4 of the Ordinance which provides that “the provisions of this Ordinance shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force”. The reason behind this is logical in that the legislature, having devoted attention to a special subject and provided for all the peculiar circumstances that may arise in respect thereof (the legislature is presumed to know the law when enacting legislation), it cannot intend to derogate from such special enactment by allowing the general law to override the special law, unless it does so through express and specific mention of its intention to that effect. Thus when Section 16 of the Ordinance has provided a comprehensive list of the specific types of orders (which do not include sale of property) that a Banking Court is empowered to pass with respect to property that is pledged, hypothecated etc. prior to the final judgment of a suit for recovery by sale, there is no doubt that such provision was intended to be all-inclusive, leaving no room to read in the power to sell by means of applying the general provisions of the CPC, i.e. Order XXXIX Rule 6 or the inherent powers under Section 151 of the CPC. However, the legislature did intend that nothing in sub-sections (1) to (3) of Section 16 should affect the powers of the Banking Court under Order XXXVIII Rules 5 and 6 of the CPC to attach before judgment any property other than property mentioned in sub-section (1) and therefore Civil Appeal No.1447 of 2016 -: 16 :- specifically provided for the above in Section 16(4) of the Ordinance. The saving of certain provisions of the CPC within Section 16, as done through Section 16(4), augments the view that the said section was meant to be comprehensive and it does not permit sale before judgment. This opinion is further bolstered by the fact that Section 7(1) of the Ordinance itself begins with the words “Subject to the provisions of this Ordinance, a Banking Court shall…”. Section 7(2) further clarifies and provides that:- “A Banking Court shall in all matters with respect to which the procedure has not been provided for in this Ordinance, follow the procedure laid down in the Code of Civil Procedure, 1908 (Act V of 1908), and the Code of Criminal Procedure, 1898 (Act V of 1898).” (Emphasis supplied) Therefore a Banking Court is to follow the procedure laid down in the CPC in all matters with respect to which the procedure has not been provided for in the Ordinance, whereas the procedure to prevent property which has been pledged or hypothecated etc. from being transferred, alienated etc. has been duly and exhaustively provided for in Section 16 of the Ordinance(save for Section 16 (4) thereof). Therefore, to this extent the application of the CPC has been excluded. 7. We now consider whether the second application filed by the respondent was liable to be dismissed on the ground of res judicata. There are several aspects to this issue. First, whether the principle of res judicata applies to applications or not; and second, Civil Appeal No.1447 of 2016 -: 17 :- if the answer to the first question is in the affirmative, what is the scope of the application of such a principle? Res judicata is the Latin term for “a matter (already) judged” and entails the concept of claim preclusion; once a matter has been decided and adjudicated on merits by an adjudicatory body, the same cannot be raised again. The purpose of this principle is to create repose and to prevent multiple and possibly contradictory findings on the same issues and to curb unnecessary delays in proceedings. As regards civil proceedings, this concept is codified in Section 11 of the CPC. However, the said section specifically refers to ‘suits’ and therefore restricts the application of the principle thereto. Interlocutory applications can not be regarded as ‘suits’; hence, strictly speaking Section 11 of the CPC would not be attracted to such applications. Nevertheless, the general legal principles of res judicata would most certainly apply. Therefore an order passed pursuant to any interlocutory application at one stage of the proceedings would operate as a bar upon similar interlocutory applications made at a subsequent stage of the proceedings based on the general principles of res judicata.1 However this general rule will not apply where the order on such interlocutory application does not involve any adjudication. Examples of such instances are:- where there is no decision on merits, but a mere expression of opinion not necessary for the disposal of the application;2 where a matter, though in issue has, as a fact, not been heard and decided, either actually or constructively;3 where a matter in issue has been 1 The Code of Civil Procedure (1908) as amended by Act 104 of 1976 by W. W. Chitaley and V. B. Bakhale. 2 Aruguma Thamviran and others Vs. Namasivaya Pandara Sannadhi and others (AIR 1926 Mad 162). 3 Jairam Kissan Vs. Chandrakaladevi and others (AIR 1974 Bom 49). Civil Appeal No.1447 of 2016 -: 18 :- expressly left open and undecided;4 where the suit is not pressed; or where the suit is withdrawn.5 A further exception is highlighted in the case of Amanullah Khan and others Vs. Khurshid Ahmad [PLD 1963 (W.P.) Lah 566], which holds that where an application has been decided once, but subsequently a fresh application is made on facts and circumstances different from those which existed earlier, res judicata would not apply. In this context the case reported as Mst. Sarkar Khano A. Molo Vs. Abdul Malik Rehmanah20tullah Kasim Lakha through L.Rs. and others (2016 YLR 1506) is germane which holds that the change of the status of a suit property, even during the pendency of a suit, could be pressed as a fresh ground to re-present an application, even in the event of the existence of an earlier order on an application of the same nature or title. We find it pertinent to make reference to the case of Arjun Singh Vs. Mohindra Kumar and others (AIR 1964 SC 993) wherein it was held that interlocutory orders such as orders of stay, injunction or receiver which are designed to preserve the status quo during the pendency of the litigation and to ensure that the parties may not be prejudiced by the normal delay occasioned in the proceedings before the Court, do not decide in any manner the merits of the controversy in issue in the suit and are capable of being altered or varied by subsequent applications for the same relief, but only on proof of new facts or new situations which subsequently emerge. The Indian Supreme Court drew a fine but elegant distinction between the rule of res judicata and a rejection on the ground that no new facts have been adduced to justify a different order. It held that if the decision on a 4 Parsotam Gir Vs. Narbada Gir [(1899) ILR 21 All 505]. 5 Ghulam Nabi and others Vs. Seth Muhammad Yaqub and others (PLD 1983 SC 344); Muhammad Akram and others Vs. Member, Board of Revenue and another (2007 SCMR 289). Civil Appeal No.1447 of 2016 -: 19 :- particular issue of fact is based on the principle of res judicata even if fresh facts were placed before the Court, the bar would continue to operate and preclude a fresh investigation of the issue, whereas in the other case, on proof of fresh facts, the court would be competent, indeed would be bound to take those into account and make an order in conformity with the new facts. Thus in our view, the proof of new facts or circumstances is necessary in order to exclude the application from the bar of res judicata in respect of interlocutory applications during the pendency of a suit. A further exception is where an application is dismissed as being premature; this is not a decision on merits and would not operate as res judicata. A case in point is Banwari Lal Radhe Moham Vs. Punjab State Co-operative Supply and Marketing Federation Ltd. (AIR 1983 Delhi 86) wherein it was held that the application for injunction against encashment of bank guarantee did not bar the second application seeking the same relief as the first application was premature and held to be not maintainable for the reason that no demand for encashment of guarantee had been made at the time of the first application. In the instant matter, the order dated 16.4.2013 dismissing the first application filed by the respondent seeking sale of the goods did not adjudicate on merits, rather the Banking Court specifically termed the said application premature. This clearly leaves the matter to be decided at a later stage. Further, the subsequent application filed by the respondent seeking sale of the goods indicates a development in that the keys of the godown where the goods were located were no longer with the muccadam of the bank, hence their apprehension that the appellant might misappropriate the goods, which circumstances did not prevail at Civil Appeal No.1447 of 2016 -: 20 :- the time of the first application. We are of the view that the argument by the learned counsel for the appellant that the second application was barred by the principle of res judicata is misconceived. The case of Hashir Ahmad (supra) relied upon by the learned counsel for the appellant is a leave refusing order and is thus not the law laid down by this Court. 8. In light of the above, the order for sale of the goods in question passed by the learned Single Judge-in-Chambers and the order upholding such order of sale in appeal passed by the learned Division Bench of the Banking Court are illegal, being in violation of the provisions of Section 16 of the Ordinance. Therefore, this appeal is allowed and the impugned order is set aside. 9. Before parting it may be observed that the matter is pending before the Court for the last five years, yet leave application has not been decided. We direct the Banking Court (where the case is statedly pending now) to decide the matter within one month from the date fixed for hearing before the Court without fail. Till the final decision upon the leave application, Mr. Salman Aslam butt, learned counsel for the appellant has undertaken that the stocks lying in godown Nos.9 and 11 shall not be removed or disposed of. The criminal original petition is accordingly disposed of. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 2nd of January, 2018 Approved for reporting Waqas Naseer

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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 APPEAL NO.1459 OF 2018. Against judgment dated 13.09.2018 of Peshawar High Court, Peshawar, passed in Writ Petition No.4125-P of 2017. Riffat Shaheen. …Appellant(s) Versus The Government of KPK through Chief Secretary, Peshawar and others. …Respondent(s) For the appellant(s): Mr. Nasir Mehmood, ASC Mr. M. S. Khattak, AOR For the respondent(s): Barrister Qasim Wadood, Addl.AG, KP Date of Hearing: 07.03.2019. 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 13.09.2018. Through the impugned judgment, a constitutional petition filed by the petitioner was dismissed. 2. The brief facts necessary for decision of this lis are that the petitioner was appointed as a PTC Teacher on 04.10.1985 and has been residing with her husband in a government accommodation (Quarter No.26-B, Officers Block, GRC, Kohat Road, Peshawar). He was working as an Assistant Director, KPK TEVTA. He retired on 01.04.2017. After expiry of CIVIL APPEAL NO.1459 OF 2018. six months’ grace period, the Respondents issued a vacation notice dated 29.09.2017. The petitioner applied for transfer of the quarter in her name on 01.08.2017 under Rule 4 of the KPK Residential Accommodation at Peshawar (Procedure for Allotment) Rules, 1980 (‘the Rules, 1980’). Her request was not acceded to. In the meantime, Khyber Pakhtunkhwa Buildings (Management, Control and Allotment) Act, 2018 (“the Act”) was promulgated which repealed and substituted the previous Rules. Consequently, the petitioner’s application was not accepted which prompted her to approach the High Court in its constitutional jurisdiction. However her constitutional petition also did not succeed. Hence, this petition. 3. The learned counsel for the petitioner submits that under the Rules, 1980 a vested right had accrued in her favour which could not be taken away through a subsequent change in law/rules. He further maintains that the Act, 2018 and the Rules framed thereunder were promulgated on 22.01.2018 and the same could not be given retrospective effect. He maintains that the High Court has erred in law in applying and interpreting the relevant laws and has exercised jurisdiction in a perverse and erroneous manner. 4. The learned Additional Advocate General, Khyber Pakhtunkhwa has defended the impugned judgment. He submits that the case of the petitioner was governed under the CIVIL APPEAL NO.1459 OF 2018. Rules, 2015 which were struck down by the learned High Court. It had been observed by the High Court that out of turn allotments were required to be prohibited by the law and the Rules. He maintains that the Act, 2018 was promulgated in light of the judgment of the High Court and gave effect to the same. He further submits that a special quota for children and spouses of the deceased/retired employees has been provided in the new law. At present, the petitioner appears at Sr.No.13 of the waiting list under the said quota. As soon as accommodation becomes available she would be entitled to the same in accordance with her seniority under the said quota. 5. Having heard the learned counsel for the petitioner and the learned Law Officer, we find that the Rules, 1980 as well as the Rules, 2015 were repealed by the Act and Rules of 2018, which specifically provided that the Rules of 1980 and 2015 stood repealed except to the extent as were not in consistent or in conflict with the Act and Rules of 2018. It is also an admitted fact that the Rules of 2015 did not provide for out of turn allotment to the spouse of a retired civil servant. Further, the Act and Rules of 2018 do not provide an automatic benefit to the spouse or children of a deceased or retired civil servant to retain the government accommodation on retirement/demise of the original allottee. However, their rights have been safeguarded by providing a special quota in the available government housing which is based on seniority of applications. A list of eligible children and spouses of CIVIL APPEAL NO.1459 OF 2018. retired/deceased employees is accordingly maintained by the concerned department. That being the case, the petitioner would be entitled to allotment of an official accommodation at her own turn and she cannot rely upon the Rules of 1980 and or of 2015 in order to advance her claim. Further, she has already retained the government accommodation for a grace period of six months whereafter she and her husband are obliged to vacate the government accommodation and utilise house rent allowance which is paid by the government. 6. The learned Law Officer has also pointed out that the petitioner’s name appears at Sr.No.13 of the waiting list maintained by the Respondents for allotment of government accommodation. We are therefore not persuaded by the argument of the learned counsel for the petitioner that she has a legitimate right to retain the government accommodation originally allotted to her husband on the basis of 1980 Rules because the same have been repealed. Her case is governed by the Act, 2018 and the Rules framed thereunder and no legally enforceable vested right exists in her favour. The judgment of the High Court is well reasoned and does not suffer from any legal, procedural or jurisdictional defect, error or flaw that may require interference by this Court. 7. Above are the reasons for our short order dated 07.03.2019. The same for ease of reference is reproduced below:- CIVIL APPEAL NO.1459 OF 2018. “Having heard the learned ASC for the appellant as well as the learned Additional Advocate General, Khyber Pakhtunkhwa and for reasons to be recorded later, this appeal is dismissed.” JUDGE JUDGE JUDGE ISLAMABAD. 07.03.2019. ZR/* ‘Not Approved For Reporting’

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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 APPEAL NO. 1460 OF 2013 AND CIVIL PETITION NO. 133 OF 2012 (On appeal against the judgments dated 13.03.2013 & 01.12.2011 passed by the High Court of Sindh, Karachi in C.P. No. D-3336/2011 & Islamabad High Court, Islamabad in W.P. No. 2895/2011) FBR through Chairman, Islamabad etc (In both cases) … Appellants/Petitioners VERSUS M/s Wazir Ali and Company etc (In CA 1460/2013) Shahid Aziz Zahidi and others (In CP 133/2012) For the App/Petitioners: Mr. Abdul Hameed, ASC (In CA 1460/2013) Mr. Babar Bilal, ASC (In CP 133/2012) Mr. Masood Akhtar, Chief Legal Officer, FBR For the Respondents: Nemo (For Respondent No. 1 in CA 1460/2013) Ex-parte (For respondent No. 2 to 4 in CA 1460/2013) Mr. M. Raheel Kamran Sh, ASC (For respondent Nos. 1 to 13 in CP 133/2012) Date of Hearing: 09.03.2020 JUDGMENT CIVIL APPEAL NO. 1460/2013 FAISAL ARAB, J.- The respondent is a partnership firm engaged in the business of importing goods and selling them in the local markets. During the course of tax year 2011, the respondent paid advance income tax at the import stage on the value of goods which tax in terms of Section 148 of the Income Tax Ordinance, 2001 (“2001 Ordinance”) had become its final tax liability for that tax year. During the same tax year, Section 4A was CIVIL APPEAL NO. 1460 OF 2013 AND CIVIL PETITION NO. 133 OF 2012 2 inserted in the 2001 Ordinance through the Income Tax (Amendment) Ordinance, 2011 dated 16.03.2011 whereby surcharge was imposed at the rate of 15% of the income tax payable under the 2001 Ordinance for the period commencing from the promulgation of the 2001 Ordinance till 30.06.2011. Section 4A of the 2001 Ordinance reads: ‘4A. Surcharge: - (1) Subject to this Ordinance, a surcharge shall be payable by every taxpayer at the rate of fifteen per cent of the income tax payable under this Ordinance including the tax payable under Part V of Chapter X of Chapter XIII, as the case may be, for the period commencing from the promulgation of this Ordinance, till the 30th June, 2011. (2) Surcharge shall be paid, collected, deducted and deposited at the same time and in the same manner as the tax is paid, collected, deducted and deposited under this Ordinance including Chapter X or XII as the case may be: Provided that this surcharge shall not be payable for the tax year 2010 and prior tax years and shall be applicable, subject to the provisions of sub-section (1), for the tax year 2011 only.’ 2. On 12.09.2011, FBR issued Circular No.11 of 2011, relevant portion of which reads ‘However, it has been decided that the tax liability for the entire T/Y (Tax Year) 2011 may not be subjected to imposition of surcharge and the same be levied on the proportionate liability for a period of three and a half months.’ Thus, in terms of the Circular, the liability of surcharge was confined to a period of 3½ months (16.03.2011 to 30.06.2011) and the tax liability of the tax year 2011 was to be proportionately allocated to the 3½ month period. This Circular was then followed by the Federal Government’s Notification SRO 977 (1) 2011 dated 19.10.2011 whereby in exercise of the power conferred by Sub- Section (2) of Section 53 of the 2001 Ordinance, Clause (11) was added in Part III of the Second Schedule which reads ‘The amount of surcharge payable on the income tax liability for the tax year 2011 under Section 4A shall be computed on the proportionate amount of income tax liability for three and a half months.’ 3. Before the period for the filing of tax returns under Section 114 and the statement of income under Section 115 of the 2001 Ordinance for the tax year 2011 expired, the respondent CIVIL APPEAL NO. 1460 OF 2013 AND CIVIL PETITION NO. 133 OF 2012 3 challenged FBR’s Circular dated 12.09.2011 in the High Court of Sindh in its Constitutional jurisdiction. The main ground for the challenge was that the surcharge can only be computed on that tax liability that exclusively pertained to the income derived in the 3½ months period. It was thus maintained by the respondent that for the purpose of computing surcharge, all payments of advance income tax made at the import stage in the entire tax year 2011 should not be taken into consideration proportionately for the purposes of determining surcharge for the 3½ month period and the advance income tax paid in the said 3½ month period only could have been considered. On such basis, prayer was made to declare FBR’s Circular unlawful and void ab initio. 4. The learned judges of the High Court in the impugned judgment gave the findings to the effect that Section 4A of the 2001 Ordinance does not envisage proportionate determination of the tax liability of the entire tax year 2011 for the purposes of calculating surcharge for the 3½ month period and only that income was to be taken into consideration which pertained to such period only. In other words, taxable income for 3½ month period falling between 16.03.2011 to 30.06.2011 alone was to be ascertained on which tax liability was to be worked out afresh and then on such tax liability surcharge was to be computed. The effect of the impugned judgement was that it split the entire tax year 2011 into two and then the income of the last 3½ month period only was taken into consideration for computing tax liability and on that limited tax liability of 3 ½ month period the surcharge was to be computed. In deciding so, the High Court invoked the principle that when two interpretations of a charging provision are reasonably possible, the one favouring the taxpayer is to be preferred and adopted. This principle was applied after taking into consideration the fact that most of the respondent’s taxable income related to the first 8½ month period of tax year 2011 and not the remaining period of 3½ month and the interpretation which it put on Section 4A of the 2001 Ordinance was more beneficial to the respondent’s case. Upon giving such findings, FBR’s Circular dated 12.09.2011 was declared to be inconsistent with the provisions of CIVIL APPEAL NO. 1460 OF 2013 AND CIVIL PETITION NO. 133 OF 2012 4 Section 4A of the 2001 Ordinance. Aggrieved by such decision, the department has preferred this appeal with the leave of this Court. 5. The whole of the 2001 Ordinance envisages that the income tax liability is to be determined on the basis of taxable income that is derived or legally presumed to have been derived in a whole tax year and not any part of it. Therefore, even for the purpose of computing surcharge under Section 4A of the Ordinance, the entire income tax liability of the tax year 2011 was to be taken into consideration which was then to be proportionately allocated to the 3½ month period and on that figure of proportionate tax liability surcharge was to be calculated. This is so as no provision of the 2001 Ordinance allows splitting of a tax year into two periods for the purposes of determining two separate taxable incomes of the same tax year and then on the income of one such period tax liability is to be computed. If that is done, it would be in derogation of the provisions of the 2001 Ordinance itself, most relevant being the provisions of Sections 4(1), 74, 114 and 115 of the 2001 Ordinance. When we read Section 4 (1) of the 2001 Ordinance, it clearly provides that income tax liability is to be determined for the entire period of a tax year not any part of it and tax year is specifically defined in Section 74 of the 2001 Ordinance which means a period of twelve months. This period normally ends on 30th June and may also end on any other date in case the same is allowed by the competent authority to be adopted. Nevertheless, a tax year under Section 74 of the 2001 Ordinance has to be of twelve months. It is for this reason that Section 114 of the 2001 Ordinance under which return of income is required to be filed covers entire tax year. Even in cases where payment of advance tax becomes a person’s final tax liability and he is required to file only a statement of income under Section 115 of the 2001 Ordinance, that statement too has to be with regard to the tax year and not any part of it. Whatever method of computing taxable income is applicable to a person, either at the rates specified in the Schedule to the 2001 Ordinance or the advance tax deductions become his final tax liability, one thing is certain that income tax liability is determined on the actual or presumptive income of the whole tax year. Therefore, in cases CIVIL APPEAL NO. 1460 OF 2013 AND CIVIL PETITION NO. 133 OF 2012 5 where advance tax deduction made on the basis of value of goods imported by a person is considered to be his final tax liability, the legally presumed taxable income of such a person would be the total value of goods imported in a given tax year. Hence in whichever mode the tax liability of a person is determined under the 2001 Ordinance, it is determined on a taxable income that pertains to a whole tax year. Splitting of taxable income of the same tax year would negate the very intention of the Legislature reflected from the provisions of Sections 4(1), 74, 114 and 115 of the 2001 Ordinance. Not only this, the provision of Section 4A (1) of the 2001 Ordinance also leads us to reach to the same conclusion. It reads as follows:- “4A. Surcharge: - (1) Subject to this Ordinance, a surcharge shall be payable by every taxpayer at the rate of fifteen per cent of the income tax payable under this Ordinance including the tax payable under Part V of Chapter X of Chapter XIII, as the case may be, for the period commencing from the promulgation of this Ordinance, till the 30th June, 2011. 6. As is evident from the contents of Section 4A(1) of the 2001 Ordinance, it starts with the phrase ‘Subject to this Ordinance’, underlined to lay emphasis, which clearly points out that it does not have any overriding effect, hence, it cannot be in derogation of any provision of the 2001 Ordinance and, as already discussed, no provision of the 2001 Ordinance envisages splitting of a taxable income of a tax year. Secondly, Section 4A also contains the phrase ‘…. at the rate of fifteen percent of the income tax payable under this Ordinance…’ underlined to lay emphasis, which further leads us towards the direction that surcharge is to be computed on the income tax that is determined in the manner provided under the 2001 Ordinance itself and not in any other manner. This leaves no room for computing tax liability of the tax year 2011 on a basis other than what is provided in the 2001 Ordinance. This then means that the whole basis for computing surcharge even for 3½ month period should be the income tax liability that is determined for the entire tax year, 2011 and then such tax liability is to be proportionately allocated for the 3½ month period for the purposes of computing surcharge without determining two separate taxable incomes of the same tax year and CIVIL APPEAL NO. 1460 OF 2013 AND CIVIL PETITION NO. 133 OF 2012 6 then working out tax liability of 3½ months separately for the purposes of computing surcharge. In other words, there cannot be separate determination of taxable income for 8½ month period (from 1st July to 15th March) for which accounting is to be separately done and then a separate accounting is done for the remaining 3½ month period (from 16th March to 30th June) and on the basis of taxable income emerging for the 3½ month period, income tax liability is computed and on that surcharge payable Section 4A of the 2001 Ordinance is calculated. 7. As discussed above, when no provision of the 2001 Ordinance permit splitting of tax year for the purposes of determining two separate taxable incomes of the same tax year and the only way to compute surcharge was to allocate tax liability of the entire tax year 2011 proportionately to the 3½ month period then the question of more than one interpretation of Section 4A does not arise. Even for argument sake we assume that more than two interpretation of Section 4A were possible then how to deal with the situation where there are two sets of taxpayers, one to whom the proportionate basis would be more suitable as they may have derived all or substantial income in the last 3½ month period of the tax year 2011 in comparison to first 8½ month period of the tax year 2011. For them the interpretation of the learned judges of High Court which splits the tax year into two would not be of any benefit as proportionate determination of taxable liability would be more suitable to them. Whereas the other set of taxpayers like the respondent to whom the splitting of the tax year for the purposes of determination of taxable income and on that tax liability is computed separately would be more beneficial instead of proportionate allocation of tax liability. Both the situations can arise. This would mean to vary the interpretation in order to give beneficial interpretation. The Courts cannot put two separate interpretations of the same provision of law on the principle of beneficial interpretation, one of which is beneficial to one set of taxpayers and the other to another, though the taxing provision applies equally to both the sets of taxpayers without any distinction whatsoever. This would create an anomalous situation. We are clear in our minds that Section 4A does not admit more CIVIL APPEAL NO. 1460 OF 2013 AND CIVIL PETITION NO. 133 OF 2012 7 than one interpretation as it was inserted in the 2001 Ordinance with the rider that it is subject to the other provisions of the said Ordinance and none of its provisions permit splitting of the period a tax year for the purposes of determining one tax liability for one period and the other for the other period of the same tax year. Therefore, the only way Section 4A would have become workable for the purposes of computing surcharge keeping within the four corners of the Ordinance was that the tax liability of the entire tax year 2011 was proportionately divided in order to notionally work out the tax liability for the 3½ month period that falls between 16.03.2011 and 30.06.2011 and then liability of surcharge is computed on such determination. 8. The respondent follows normal tax year of twelve months that ends every year on 30th June. Whatever advance tax was recovered from the respondent at the import stage during the entire tax year 2011 that had become his final tax liability for the entire tax year 2011. As income tax liability for the whole tax year had already stood determined then this tax liability was to be proportionately divided in order to determine the notional tax liability of 3 ½ month period and on that surcharge under Section 4A of the 2001 Ordinance was to be computed. For example, income tax liability of the respondent for the entire tax year 2011 is assumed to be Rs.120,000, the same was to be divided by 12 and then multiplied by 3½ which would have given proportionate income tax liability for the 3½ month period, which comes to Rs.35,000/-. (Rs.120,000 ÷ 12 x 3½ = Rs.35,000). On this proportionate tax liability 15% surcharge payable under Section 4A of the 2001 Ordinance was to be calculated. The Circular in question had only explained the only possible way the surcharge under Section 4A could be computed by remaining within the ambit of the provisions of the 2001 Ordinance. 9. We may also point out an important aspect of the case which had escaped the attention of the advocates of the parties as well as the learned judges of the High Court. When we read Section 4A (1) of the 2001 Ordinance, it states that surcharge was to be calculated ‘…..for the period commencing from the promulgation of CIVIL APPEAL NO. 1460 OF 2013 AND CIVIL PETITION NO. 133 OF 2012 8 this Ordinance, till the 30th June, 2011.’ This clearly means that Section 4A in its application came into effect right from the date of the promulgation of the 2001 Ordinance i.e. the year 2001 till 30.06.2011 which application was then restricted to only tax year 2011 by its proviso which reads ‘Provided that this surcharge shall not be payable for the tax year 2010 and prior tax years and shall be applicable, subject to the provisions of sub-section (1), for the tax year 2011 only.’ The proviso makes Section 4A effective for the tax year 2011 only. By no means Section 4A is to be read to mean that it covers only a part of the tax year, 2011. Probably realizing the fact that Section 4A, in its application covers the entire tax year 2011 though inserted in the 2001 Ordinance on 16.03.2011 i.e. during the course of tax year 2011, FBR through its Circular No.11 of 2011 announced that the surcharge was to be paid with effect from 16.03.2011 i.e. the day Section 4A was inserted in the 2001 Ordinance till 30.06.2011 which was to be computed on the basis of proportionate tax liability of the tax year 2011. This Circular in effect granted concession to the taxpayers otherwise Section 4A had covered the entire tax year 2011 and not any part of it. Probably realizing the fact that FBR through its circulars cannot grant any concession, the same was followed by the Federal Government’s Notification SRO 977 (1) 2011 dated 19.10.2011 which was issued in exercise of the power conferred on it under Sub-Section (2) of Section 53 of the 2001 Ordinance whereby Clause (11) was added in Part III of the Second Schedule. Clause (11) provided ‘The amount of surcharge payable on the income tax liability for the tax year 2011 under Section 4A shall be computed on the proportionate amount of income tax liability for three and a half months.’ The said SRO which was issued by the Federal Government in exercise of powers contained in Section 53 of the 2001 Ordinance and granted exemption in the sense that it limited the application of Section 4A to only 3½ month period, which in terms of Section 4A covered the entire tax year 2011 and while extending such exemption, provided the mode in which the surcharge was to be computed i.e. on the basis of proportionate tax liability of the tax year 2011. Hence the said SRO 977 (1) 2011 dated 19.10.2011 on its own strength had the force of law and CIVIL APPEAL NO. 1460 OF 2013 AND CIVIL PETITION NO. 133 OF 2012 9 never came under challenge. So has to be given effect to regardless of the FBR’s Circular dated 12.09.2011, which only was challenge was challenged in the High Court. 10. The above are the detailed reasons of our short order dated 09.03.2020 whereby the delay was condoned, this appeal was allowed and the connected Civil Petition No. 133 of 2020 was converted into appeal and allowed. The short order reads as follows:- “We have heard the C.P. No. 133 of 2013 and have arrived at the conclusion that the surcharge levied under Section 4A of the Income Tax Ordinance, 2001 added thereto by Income Tax (Amendment) Ordinance IV of 2011 levies a surcharge on the income tax payable for the entire tax year. Accordingly, for reasons to be recorded later, this petition is converted into appeal and allowed. 2. In Civil Appeal No. 1460 of 2013 leave was granted by order dated 02.12.2013 but subject to the question of limitation as the petition is admittedly barred by 09 days. According to the principle laid down in Mehreen Zaibun Nisa etc. versus Land Commissioner, Multan etc (PLD 1975 SC 397) and Province of Punjab versus Muhammad Tayyab (1989 SCMR 1621) when a common question of law is decided in one case, another case involving the same point that is time barred is liable to be heard on merits. Consequently, following the said principle, we condone the delay and insofar as the merits are concerned, for reasons to be recorded later, we allow this appeal.” JUDGE JUDGE JUDGE Islamabad, the 9th of March, 2020 Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HACJ MR. JUSTICE IQBAL HAMEEDUR RAHMAN MR. JUSTICE TARIQ PARVEZ CIVIL APPEAL NO.1471 OF 2015 (Against the judgment dated 29.6.2015 of the Peshawar High Court, Abbottabad Bench, Abbottabad passed in RFA No.30-A/2012) Zahid Zaman Khan etc. …Appellant(s) VERSUS Khan Afsar etc. …Respondent(s) For the appellant(s): Haji Ghulam Basit, ASC For the respondent(s): Mr. Abdul Rashid Awan, ASC Mr. M. S. Khattak, AOR Amicus curiae: Mr. Najam-ul-Hassan Kazmi, Sr. ASC Date of hearing: 02.02.2016 … JUDGMENT MIAN SAQIB NISAR, J.- In this appeal with the leave of the court we are required to resolve the primary question as to what should be the forum of appeal where the value of the suit as fixed in the plaint has been changed by the court? Ancillary to the above, there are some other connected questions which are duly reflected in the leave granting order (LGO) and shall be accordingly addressed. 2. In this context, the brief facts of the case are that the appellants filed a suit (bearing No.167/1 of 2007) for declaration to the effect that they are the owners in possession of the suit land with further relief seeking protection of their possession. Respondent No.1 (the respondent) also filed a suit (bearing No.166/1 of 2007) qua the same land for declaration, possession and permanent injunction etc. against the Civil Appeal No.1471 of 2015 -: 2 :- appellants on the basis of his entitlement to the property. It is pertinent to mention that the appellants had valued their suit for the purposes of court fee and jurisdiction at Rs.200/- whilst the respondent valued his suit at Rs.900/-. The learned Trial Judge consolidated the suits on 26.4.2008. An additional issue was framed in the suit of the respondent qua the valuation of that suit for the purposes of court fee and jurisdiction. Vide single judgment dated 31.1.2012 the Trial court dismissed the suit of the appellants and decreed that of the respondent. With respect to the additional issue about the valuation, the court held:- “To prove the facts mentioned in the additional issue, plaintiffs produced eight witnesses and according to their statements the market value of the suit property is approximately 30 Lac rupees and as the defendant No.1 in his connected suit also sought the relief of possession in alternate, therefore, he is directed to affix the proper courfee within thirty days. Hence, the issue is decided accordingly”. Consequently, the respondent paid an amount of Rs.15,000/- (fifteen thousand) as court fee and the said valuation of the suit for the purposes of jurisdiction, as determined by the court, was also reflected in the decree passed in favour of the respondent. 3. The appellants filed one regular first appeal (RFA No.30- A/2012) before the learned Peshawar High Court challenging the judgment and both the decrees. The respondent raised a preliminary objection to the effect that for the purposes of determining the forum of appeal the valuation given in the plaint would be relevant and not the one determined by the learned Trial Court, and since the value of the suits fixed by both the plaintiffs Civil Appeal No.1471 of 2015 -: 3 :- below the pecuniary jurisdiction of the High Court, therefore, the appeal was not competent before the High Court. The respondent relied on a judgment of the learned Peshawar High Court dated 24.4.2015 passed in RFA No.41/2002. The learned High Court allowed this objection vide impugned judgment, holding:- “I am of the view that the preliminary objection raised by the learned counsel for the respondents holds the field. Therefore, the instant appeal is held not competent before this Court. Consequently, office is directed to return the appeal to the appellants for its presentation before the proper forum by retaining photocopies thereof”. Hence the present appeal (with leave of the court). 4. Leave in this case was granted on 4.11.2015 to consider the following propositions:- i. Where the value of the suit for the purposes of jurisdiction fixed in the plaint has been altered (increased) by the civil court (trial court), what shall be the forum of appeal in view of the provisions of Section 18(1)(a)(b) of the Civil Courts Ordinance, 1962; ii. Whether in the suits which are consolidated the trial court is obliged to pass separate decrees in each of the suits or a single decree shall be sufficient pursuant to a common judgment disposing of such suits; and iii. If two (or more) consolidated suits have different jurisdictional valuation and are decided through a common judgment but separate decrees have been drawn, what shall be the forum of appeal in relation to such suits/decrees; whether in such a situation the aggrieved party is obliged to file separate (RFA) appeals before District Court and the High Court as per the valuation of the suits, but the High Court where the appeal is competently filed against the common judgment and a decree which is pending can, in order to avoid conflict of Civil Appeal No.1471 of 2015 -: 4 :- judgments, withdraw the appeal filed/pending in the District Court and decide the same. 5. In answering the first question, we need to see whether the trial court has the authority in law to change the valuation of the suit for the purposes of court fee and jurisdiction and to direct the plaintiff to pay the court fee according to the valuation so determined by the court. In this context two situations may arise; firstly where a suit’s valuation by the plaintiff is challenged by the defendant on the basis of the relevant law, i.e. the Court Fees Act, 1870 (the Court Fees Act) and Suit Valuation Act 1887 (the Suit Valuation Act), an issue is framed and evidence recorded. The court is obliged to determine and fix the correct valuation for the purposes of court fees and jurisdiction (see 1980 CLC 589) and direct the plaintiff to make good the deficiency of the court fee. The plaintiff is bound to do so and failure to so do would entail the consequences under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC). In the event that the value of the suit so determined exceeds the pecuniary jurisdiction of the court, it (the court) shall send the matter to the District Judge for its transfer and entrustment to the court of competent jurisdiction. Secondly, in the cases where the defendant(s) is proceeded against ex-parte and there is no challenge to the valuation fixed in the plaint but where the court forms an impression that the suit is seemingly collusive and might have been filed to affect third party rights and/or is ostensibly undervalued, the Court is duty bound to determine and fix the value after holding such inquiry and collecting such material as may be deemed expedient by the court. It would then direct the plaintiff to make good the deficiency of the court fee. It may emphatically be stated that the law enjoins a duty upon the Court to settle questions about its Civil Appeal No.1471 of 2015 -: 5 :- jurisdiction, because subject to certain exceptions, any decision rendered by the court having no jurisdiction stands vitiated on that account alone. We are fortified in our view by a judgment reported as Ch. Nazir Ahmed Vs. Abdul Karim and another (PLD 1990 SC 42), the relevant portion reads as under:- “It is well settled that the Court is bound to ascertain the deficiency in the court-fee affixed on the plaint and then give time to the plaintiffs to make up the deficiency and if he complies with the order within time, the defect in the plaint is deemed to have been removed from the date it had originally filed in Court.” Adverting now to the proposition itself, for the purposes of determining the forum of appeal the provisions of Section 18(1) of the Civil Courts Ordinance, 1962 (the Ordinance) are relevant which are reproduced hereunder:- “18. Appeals from Civil Judges.— (1) Save as aforesaid, an appeal from a decree or order of a Civil Judge, shall lie - - (a) to the High Court if the value of the original suit in which the decree or order was made exceeds twenty five hundred thousand rupees. (b) to the District Judge in any other case.” Section 18 ibid applies to regular first appeal(s) from the decree or order of the Civil Judge. For the purposes of this proposition the most important words of the section are “the value of the original suit”. Obviously the value of the original suit initially is the one which has been fixed by the plaintiff in his plaint, but where the court in either of Civil Appeal No.1471 of 2015 -: 6 :- the two situations outlined above has increased the valuation, the determination made by the court shall be “the value of the original suit” and the value initially fixed by the plaintiff shall cease to exist, and shall for all intents and purposes on account of the judicial determination stand substituted (by the valuation of the court). It would be absurd if, even after the court having made a judicial determination to increase the value, the initial value which was found to be wrong by the court were to be given precedence over the courts’ determination and the forum of appeal were to be settled on that basis (i.e. the plaintiff’s valuation). We hold that the value determined by the court shall finally and exclusively be taken into account in terms of Section 18(1)(a) and (b) of the Ordinance as “the value of the original suit”. Reliance may be placed upon Zafeer Gul Vs. Dr. Riaz Ali (2015 SCMR 1691) wherein it has been held:- “Till final determination by the court, the valuation shown in the plaint was to be deemed as proper value of the suit property for the purpose of availing the remedy of appeal qua determining the forum of appeal.” (Emphasis supplied) Similarly in Babu Jan Muhammad and others Vs. Dr. Abdul Ghafoor and others (PLD 1966 SC 461), the facts were that the ADJ hearing an appeal rejected an objection as to the valuation of the plaint and came to the conclusion that the value of the suit for the purposes of jurisdiction should be the value placed on the suit property by the plaintiffs and he thus arrived at the conclusion that the correct value for jurisdiction was in excess of Rs. 5,000 (as an amount of land revenue was liable to be added) on the plaintiffs own valuation and consequently the appeal lay before the High Court, holding that "if the plaintiff chooses to value his suit absolutely wrongly in utter disregard of the rules Civil Appeal No.1471 of 2015 -: 7 :- obtaining on the subject, even then such a valuation is to be treated as the correct valuation for the purposes of determining the forum of appeal". The next day, the appellants presented their appeal in the High Court, which dismissed it in limine.This Court, examining the facts held as below:- The learned Judges in the High Court appear to have thought that the plaintiffs were so plainly in error in their valuation of the suit for jurisdiction that they could not be allowed the benefit of the time spent in the Additional District Judge's Court, which led to the decision that the jurisdictional value was understated. They appear to have ignored the fact that it was not for the plaintiffs to vary the valuation in the plaint when it came to taking the matter in appeal against refusal of the Senior Civil Judge to restore the suit. The plaintiffs were bound by the valuation they had thus stated, in a suit of which the Senior Civil Judge had become seized, with the consequence that that valuation could not be altered by themselves, unless with the permission of the Senior Civil Judge. Equally, when they came to appeal against the adverse order of the Senior Civil Judge, they could not choose a forum on the basis of an altered valuation to be conceived, or made by themselves. In other words, it was essential that they should take their appeal to the District Judge, since the valuation of the suit for jurisdiction was below Rs. 5,000, and it was only after that Court had decided the matter definitely that they became entitled to go to the High Court as the proper Court of appeal.” (Emphasis supplied) In the case reported as Sana Ullah Vs. Muhammad Akhtar and 11 others (1979 CLC 578) the learned Lahore High Court after considering quite a few precedents from the sub-continent came to the following conclusion:- Civil Appeal No.1471 of 2015 -: 8 :- “I am also of the view that the forum of appeal will be determined in a case where the valuation is not changed by the Court, by the value as fixed by the plaintiff but in a case where such a valuation has been changed by the Court after determining the real market value of the property, it will be that valuation which will be deemed to be the value of the original suit within the meaning of section 18 because the word 'value' means the value of the subject-matter of the suit. I am also of the view that in such a case whether the plaintiff contests the valuation arrived at by the Court or acquiesced in it, in either case the form for appeal will be determined by the valuation so found.” The findings of Nazir Ahmad and another vs. Muhammad Tahir (PLD 1992 Lahore 89), Muhammad Sharif Vs. Nawab Din and another (PLD 1957 (W.P.) Lahore 283), Suleman and others vs. Pir Baksh and others (2012 CLC 1457), Ilahi Baksh Vs. Bilqees Begum (PLD 1985 SC 393), Muhammad Nawaz Vs. Sher Muhammad (PLD 1987 SC 284) and Abdul Majid and others Vs. Muhammad Walayat Khan through his Legal Heirs (1987 SCMR 1139) are to the same effect and reliance has been placed on some of these cases in Babu Jan Muhammad and others Vs. Dr. Abdul Ghafoor and others (PLD 1966 SC 461). Learned counsel for the respondents however has placed reliance upon Muhammad Nawaz Vs. Sher Muhammad (PLJ 1987 SC 262) and Muhammad Ayub vs. Obaidullah (1999 SCMR 394) but on a close reading of these two dicta, we are of the opinion that they do not depart from the ratio of the judgments that the fora of appeal are to be determined on the basis of the valuation fixed by the court. Even otherwise the case of Muhammad Ayub is a leave refusing order and cannot be held to be the enunciation of law by this Court. Civil Appeal No.1471 of 2015 -: 9 :- 6. In conclusion, we hold that the judicial determination of the value of a suit for the purposes of court fee and jurisdiction by a judicial forum shall have precedence over the valuation made by the plaintiff and it shall be such valuation which shall be taken into account while determining the forum of appeal from a decree passed in such a suit. In other words, the judicial determination shall be the “value of the original suit” in terms of Section 18(1)(a) of the Ordinance. 7. With respect to question No.2; it is settled law that it is the inherent power of the court to consolidate suits and the purpose behind it is to avoid multiplicity of litigation and to prevent abuse of the process of law and court and to avoid conflicting judgments1. No hard and fast rule forming the basis of consolidation can be definitive and it depends upon the facts and the points of law involved in each and every case, obviously where the court is persuaded that the interests of justice so demand, consolidation can be ordered, provided no prejudice is caused to any litigant and there is no bar in the way of the courts to consolidate the suits. Reverting to the proposition, there is no provision in the CPC where the court is obliged to prepare a separate decree in the consolidated suits. However, let us consider the importance of a decree that follows a judgment. Section 33 of CPC stipulates that:- “33. Judgment and decree.--The Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow.” As is evident, a judgment is followed by a decree in a case. But where a common judgment is delivered disposing off two or more suits, how 1 PLD 2006 SC 1262 and 1981 CLC 443 Civil Appeal No.1471 of 2015 -: 10 :- many decrees are to be drawn up in such a case? In this respect it is important to keep in mind the principle that is embodied in the case of H. M. Saya & Co., Karachi Vs. Wazir Ali Industries Ltd., Karachi and another (PLD 1969 SC 65) that the Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. The Court should proceed on the principle that every procedure which furthers administration of justice is permissible even if there is no express provision permitting the same. Order XX Rule 6 of the CPC provides for the contents of a decree including necessary particulars inter alia, the number of the suit, the names and descriptions of the parties, the particulars of the claim, the relief granted or any other determination of the suit. In the circumstances it would be more appropriate that separate decrees are drawn up for each of the consolidated suits. An appeal lies against the decree and it is the decree which is executed. Additionally, for the purposes of appeal, the contents of the memorandum must state the grounds of objection to a decree. The requirement of a decree cannot be dispensed with and has to be filed along with the memo of appeal and it is for this reason that where an appeal is admitted without a copy of the decree, time may be granted by the court in appropriate cases to file the decree sheet2. In the judgment reported as Siraj Din and 11 others Vs. Rajada (1992 SCMR 979) the circumstances were that two consolidated suits were disposed off through a common judgment which was challenged through an appeal before the District Judge. The decree sheet in one of the suits was appended with the memorandum of appeal. When the appeal was allowed the aggrieved party sought to file a second appeal 2 See inter alia, 2004 SCMR 707; 1988 SCMR 892. Civil Appeal No.1471 of 2015 -: 11 :- on the basis that the earlier appeal challenged only one decree (the second appeal was accompanied by an application for condonation of delay); the said second appeal was dismissed. This Court granted leave to consider whether filing of one appeal against the consolidated judgment in two consolidated suits relating to same or similar subject, had not satisfied the requirement of law and if not, whether mere technical controversy should not have been resolved in favour of the petitioners. This Court found that “On a question of fact we also find that two separate decrees in the two suits were in fact prepared”. This Court further held that there was no question of treating the earlier appeal as confined to one suit as the substance of the appeal showed that it was a composite attack on both suits. The point to note here is that this Court considered the preparation of two decrees in the consolidated judgment to be unremarkable and indeed the tenor of the judgment is to the effect that it was a failing of the appellate court not to require the party to attach the second decree at an earlier stage. We direct all the trial courts of the country that where two or more suits have been consolidated and disposed of through a common judgment, that separate decree sheets with all the material particulars as per the requirements of Order XX of the CPC must be drawn up. This direction shall be for the future and consequence of non-compliance thereof shall be considered in appropriate cases. 8. Adverting to the third question; it is settled law that a consolidated appeal is permissible against a consolidated judgment before the appellate forum provided that it has the pecuniary jurisdiction to hear the appeal against the decrees according to their valuation i.e. the valuation of the original suit. The appellants are required in law to specifically challenge both the decrees and also to Civil Appeal No.1471 of 2015 -: 12 :- affix the requisite court fee in the same manner as they would be so obliged to affix if separate appeals were filed. This brings us to the matter of those appeals in which the decrees passed have different valuations i.e. the one falling within the jurisdiction of the High Court and the other in the jurisdiction of the District Court; obviously no consolidated appeal can be filed. In such a situation the appellants are required in law to file two appeals according to the value of the original suit i.e. one before the District Judge and the other before the High Court. The learned High Court, however, while exercising its power under Section 24 of the CPC if a case is made out within the purview of the section ibid may, in order to avoid delay in the disposal of the matter and conflicting decisions, transfer the appeal filed before the District Judge to the High Court and decide the same along with the appeal which had been competently filed before the High Court. 9. In light of the above, this appeal is partly allowed. The impugned judgment of the High Court, to the extent of the appeal in which the decree passed in favour of the respondent has been challenged and the memo of appeal has been returned is set aside. It is held that such appeal was competent before the High Court. However, to the extent of the other decree i.e. the one through which the suit of the appellants was held not competent, obviously the appellants are required to file fresh appeal before the District Judge. However as they had challenged that decree in the memo of appeal and appended the decree sheet therewith, as per the impugned order of the High Court, such certified copy of the decree sheet be returned to the appellants by the court within three days upon the production of the certified copy of this judgment. After having obtained the certified copy of the consolidated judgment and affixing therewith the Civil Appeal No.1471 of 2015 -: 13 :- decree sheet so returned to the appellants, a fresh appeal may be filed before the District Judge with the appropriate application seeking condonation of delay which (application) shall be decided by the District Court on its own merits. Before parting we must acknowledge the valuable assistance provided to us by the learned amicus. JUDGE JUDGE JUDGE Announced in open Court on 24.2.2016 at Islamabad Approved For Reporting Waqas Naseer/* JUDGE

{'id': 'C.A.1471_2015.pdf', 'url': ''}

{'id': 'C.A.1471_2015.pdf', 'url': ''}

IN THE SUPREME COURT OV PAR:ASTI (APPELLATE JURISDICTION) PRESENT: - MR. JUSTICE GULZAR AHMED, HCJ MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SYED MANSOOR ALl SHAH CIVIL PPEAL NO.1474. OF 2015 (Against the judgment dated _16.12.2014 passed by the Peshawar High Court, Peshawar in Writ Petition No.162 of 2014). • Muhammad Naeem Khan. � ...Appellant(s) Versus . President, National Bank of Pakistan, etc. � ...Respondent(s) - For the Appellant(s): �Mr. Abdul Rehman Khan, ASC. For the Respondent(s): � Mr. Ghulam Sh.oaib Jaily, ASC. Syed Rafaqat H. Shah, AOR. Date of Hearing: � 10.12.2020. JUDGMENT WAZ J-. This appeal by leave of the Court is directed against a judgment of the Peshawar 1-ligh Court, Peshawar dated 16.12.2014. Through the impugned judgment, a constitutional petition (W.P,No.162 of 2014) filed by the Appellant was dismissed. 2. �Briefly stated the facts necessary for disposal of this Lis are that the Appellant (Muhammad Naeem Khan) was holding the post of Assistant Vice President and was posted . as Branch. Manager, National Bank of 2 Pakistan, Main Branch, .Swa.bi. A charge sheet was issued to him on various allegations including failure to keep comprehensive and intelligent check over the Branch affairs and control systems, failure to follow Circulars regarding steps to be taken to enhance confidence in the system resulting in increased business, better discipline, reduction in fraud and forgeries and improve controls to strengthen operational activities. It was alleged that he had failed to perform his assigned responsibilities rather he became instrumental and supported various individuals in defrauding the Government exchequer. It was further alleged that the Appellant was informed by a whistleblower namely, Gulfraz, Officer Grade--I about the fraud being committed in tb.e Branch. However, instead of taking any action against the delinquents, he tried to pressurize the whistleblower and exerted pressure on him to keep silent about the issue. He also removed the whistleblower from the pension payment section of the Branch in order to facilitate continuation of fraudulent activities in the Branch. Despite being informed by the whistleblower that fraud was being committed in the pension payment section of the Branch, instead of bringing the fraud into the notice of the Regional Management he intentionally and deliberately concealed the facts from the Controlling . � • � . clihAPiML?Cl474O?2('Jj 3 Office and withheld the relevant information. The charge sheet further alleged that the Appellant was in the knowledge of irregularities pointed out by the Regional Inspectors/Annual Audit/ Surprise Auditors/Internal Control Inspectors pertaining to pension payments. However, he deliberately kept silent and made no effort to improve internal working of the Branch and strengthening the operational controls. It was stated that he intentionally avoided to relieve an under transfer delinquent officer namely Hikrnat Shah, 00-1 for Moneri Branch and retained him in his Branch for more than 11 and a half months with the result that the said delinquent officer continued his fraudulent activities and embezzled pension payments in substantial amounts causing loss to the exchequer. 3. �Finally during his tenure as Branch Manager important bank books were not maintained including pension payment book (B-59)/Pension Register (B-143) and updation of pension records. Through his acts of omission and commission, he had been guilty of negligence and dereliction of duty which resulted in huge financial loss to the exchequer. His reply to the charge sheet was not found satisfactory and after due process a penalty of demotion to one lower grade was imposed by way of demoting him from the post of Assistant Vice :21 2.X.5 President to Officer Grade-1. Although the Appellant alleges that the punishment was appealed in the departmental hierarchy which was not decided, the Respondent-Bank totally denies receipt of any such appeal. Nothing has been placed. on record by way of proof of filing such appeal. He approached the Peshawar High Court, Peshawar in its constitutional jurisdiction challenging his punishment and seeking redressal of his grievance. Such petition wa.s dismissed by the learned High Court, vide impugned judgment dated 16.12.2014. 4. �Leave to appeal was granted by this Court on 08.12.2015 in the following terms: "it is argued by the learned counsel for the petitioner that service in the respondent Bank is governed by National Bank of Pakistan (Staff) Service Rules, 1973, which are statutory rules and in terms of Rule 39 inquiry has to be conducted as per the instructions Circular No.4/2003 dated 24.04.2003, issued by the President of the Bank, SET/13 and Chairman of Disciplinary Cases Committee was the competent authority to issue charge sheet to the Executives. 2. He contends that charge sheet to the petitioner has been issued by Mr. Naeem Khan, AI/P/ Manager, who was not competent. He further states that whole of the disciplinary proceedings against the petitioner were tainted with the illegalities. 3. The submissions made, require consideration. Leave to appeal is granted to consider the above points." • 1„..4CEE2.521Elluili2 �102110-0011,226.01-attf,i3Meia 77,........P.P.MPW7.r. � •-= f2IYILAP.V.ZAW11-3.11%:1..ciff ,VIT2 5. �The learned counsel for the Appellant submits that service in the Respondent-Bank is governed by the National Bank of Pakistan (Staff) Service Rules, 1973 ("Rules, 1973"). Such Rules are statutory in nature and in terms of Rule 39 of the Rules, 1973 an inquiry has to be conducted as per instructions contained in -Circular No.4 of 2003 issued by the President of the Bank. He maintains that in issuing the charge sheet, the requirements of Rule 3 of the Rules, 1973 were not followed insofar as the charge sheet was issued by Muhammad Hassan Khaskheli, ENP/Divisional Head who was not competent to do so. He f rther maintains that disciplinary proceedings were not conducted by the competent officer and are therefore a nullity in the eye of law. He submits that some co-accused of the Appellant namely Syed Qurban Ali Shah, 0G-I and Abdul A.kbar, 0G-II were exonerated while the Appellant who was overall supervisor of the Branch and was not directly involved in operational matters was wrongly punished. He further submits that the Appellant was not provided a copy of the proceedings or that of the inquiry report and the impugned penalty has been imposed upon him in violation of FR-29. He finally maintains that the Appellant was not granted personal hearing before imposing the major penalty which has violated his legal • 17.1-ck, 1.4 � 6 and constitutional rights and amounts to being condemned unheard. Further, the major penalty of demotion to a. lower rank did not specify the timeframe or duration of the penalty which is against the settled principles of law on the subject. 6. �Learned counsel for the Respondent-Bank has however defended the impugned judgment. He submits that the Appellant being the Branch Manager was responsible to keep an eye on all activities in the Branch and maintain vigilance against any fraud or illegality in the Branch. He points out that despite fraud being pointed out to him by the whistleblower, instead of taking action the Appellant tried to pressurize the whistleblower and ultimately removed him from the pension payment section of the Branch. It is further pointed out that in contravention of his fiduciary duties the Appellant intentionally tried to conceal fraud and ignored illegalities committed in the pension payment section of the Branch despite such illegalities being pointed out during his surprise audit. He further submits that the Appellant was overall incharge of the Branch and it was his duty to ensure that all books and records including but not limited to pension records were immaculately maintained and his failure to do so resulted in heavy loss to the public exchequer. He further submits that all legal and 7 procedural formalities were properly followed, the Appellant was given adequate and multiple opportunities to defend himself yet he was failed to defend himself and was found guilty of most of the charges mentioned in the charge sheet by independent inquiry officers/ competent authorities who had no personal bias or grudge against him. 7. �As far as failure to specify the period of major penalty is concerned, the learned counsel for the Respondent-Bank has pointed out that a categoric statement was made before the leaned High Court that the Appellant would be considered for promotion on the • basis of available record to the next higher post after expiry of his three years penalty. Failure on the part of the competent authority to specify the period of punishment would not have the effect of nullifying the entire proceedings specially so where the defect stands cured and has been so mentioned in the impugned judgment of the learned High Court. 8. �We have heard the learned counsel for the parties and gone through the record with their assistance. The main focus of the argument of learned counsel for the Appellant is that the show cause notice was issued by an incompetent authority. It is claimed by • '" � •••..• � • S.22W,...61.016.12.N1W221.1k: 2.411.4 � 8 the Respondent-Bank that the charge sheet was issued by an authorized officer and all proceedings were carried out as per the provisions of the Rules, 1973, We have examined the said Rules and find that the power to issue show cause notice has been mentioned in Rules 38 & 39 read with Rule 3(d) and Sr.No.12 of Appenclit to the Rules, 1973. Rules 38 86 39 of the Rules, 1973 provide that a competent authority is authorized to issue show cause notice. Rule 3(d) of the Rules, 1973 defines the competent authority as an authority specified .in Column No.4 of Appendix-1 to the Rules, 1973. For ease ol reference, Appendix-I to Rules 1973 is reproduced below: Sr. No Reference to Rules • Nature � of powers delegated Competent authority to whom powers delegated Categories � of employees � in respect � of which powers delegated upto 10. 32 Grant � of (a) � Managing Director 1(a) 33 and 34 permission (b) � Deputy Managing Directors 1(b) to � incur • unsecured debt � and giving guarantee, etc � to open accounts with � other banks (c) � Pleads � of � Administration Department, � I lead Office! Principal Offices 11 11. 37 and 39 Dismissal (a) � Managing Director I (11 and � other (b) � Deputy Managing Directors II punishment a (c) � I leads � of � Ad in ini s traticm Department, � (lead 111 Office/Principal � Offices � and Senior Regional Managers. (d) � Regional � Managers � and IV Managers � (Officers � Grade � II and above). � 12. 38 and 39 Suspension (a) Managing Director I(a) (pending (b) Deputy Managing Directors. All Categories enquiry) (c) Heads � of � Administration except 1(a), (b) grant � of permission to � leave station during suspension and issue of show cause Department, � Head Office/ Principal � Offices � and Senior Regional Manager. (d) 'Heads of Departments at Head Office/Principal � Offices. Regional � Managers � and Managers (Officers Grade I and above) and (c) notice (c) � Managers of lira riches (Officers II Grade If and a once) (I) � Managers of Branches (Officers Ill L ----------------------- •_ Grade III and Junior Officers) 9. �A perusal of the Appendix-I above reveals that delegation of powers in respect of issuance of show caus 1.10. Am, � Nc?,_Lcerilf3 9 notices have been mentioned at Sr.NO.12 thereof. in terms of the said item, the power to issue show cause notice to all categories except (i)(a), (b) and (c) are delegated to Deputy Managing Director, Head of Administration Department, Head Office, Principal Offices and Senior Regional Managers. In the case in hand, the show cause notice was issued by Executive Vice President/ Divisional Head, Head Office, Karachi. It would therefore appear that the show cause notice to the Appellant has prima facie been issued by a competent authority. We, therefore, find that the power conferred through Rules, 1973 was rightly exercised by the Executive Vice President and the objection of the Appellant in this regard is misconceived and is accordingly over ruled and repelled. 10. � It also appears to us that the nomenclature of different designations has changed overtime. However, the powers of officers of various categories, in the matter of disciplinary proceedings remain the same. According to the learned counsel for the Respondent-Bank, after change of nomenclature, various categories may be read as follows: "CATEGORY a) Senior Exec-utlue Vice President/Executive Vice President f'xecutive grade) b) Senior Vice President: (Senior grade-I) c) Vice President: (Senior grade-I1) d) Assistant Vice President: (Senior grade-III) e) Officer Grade-I. .1) � Officer Grade-II/Chief Cashier. .0- fir, ;armee � ..1774.4•7: .6BOL.40),Q.1.174.12.1LVt4 � 10 FY) � Officer Grade-Ill/Senior Head Cashier. CATEGORY II a) Senior Assistant/ Head Cashier/ Stenographer/ Godown. Inspector/ Head Draftsman. b) Draftsman/ Estimator/ Overseer. c) Senior Cashier/ Stenotypist/ Teleprinter/ Telex. Operator/ Key Punch Operator. d) Assistant/ Typist/Cashier/ Godown Keeper/ Machine & Telephone Operator/ 0)ristructicm � Supervisor/ Works Supervisor/ Tracer/ Mechanic and other technicians. CATEGORY III a) Electrician (Possessing Wireman's Competency Licence)/ Ferro Printer. b) Driver/ Chief Jemadar/ Daftari c) Bank Guard/ Chowkidar/ Messenger/ Electrician/ Mali and other inferior staff d) Sweeper." 11. As far as the argument of the learned counsel for the Appellant in respect of President's Office Circular No.4 of 2003 dated 22.04.2003 is concerned., the same mentions the authority to issue charge sheet as Chairman/Disciplinary Cases Committee (DCC). We have found the said reading of the Circular by the Appellant is erroneous and misleading. Rule 5 of the Rules, 1973 defines delegation of powers as follows: `Rule 5(2) provides that "The Managing Director may, where considered necessary, delegate any of the powers vested in him to the Deputy Managing Directors and those exercised by the Deputy Managing Directors to other officers." 12. It appears that by virtue of the powers available under Rule 5(2), the President of the Bank delegated his powers to the DCC through Circular No.4 of 2003. In the same circular at point No.2(a) it is clearly mentioned.. that "all the disciplinary cases failing within the competence of the President and the Board of Directors, shall be considered, deliberated upon. and decided/recommended by the Committee". it further COLIALTMLni 1Y-1 Sk.2q1.1i � 11 appears that under Circular No.4 of 2003, the President of the Bank delegated his Own powers which by virtue of the Appendix are in respect of issuing show cause notices to DepUty Managing Director, Senior Principal Officers and Principal Officers. in the case in hand, the matter is not in respect of issuing show cause notice to any of the said officers because the Appellant was neither Deputy Managing Director, Senior Principal Officer nor the Principal Officer and in fact he was an Assistant Vice President. Therefore, his stance that only the Chairman/ICC were the competent authorities to issue him show cause notice is clearly misconceived. We have also gone through NBP Instruction Circulars, Office Circulars, information Circulars and NBP Employee Discipline Policy (EDP). On perusal of the said documents leads us to the conclusion that the charge sheet was validly and lawfully issued by an authorized officer, competent to do so. 13. � Having dealt with the question of validity of the charge sheet, we have gone through the inquiry report and the material collected during the inquiry. It is clear and obvious to us that the Appellant being Branch Manager was, responsible to keep an eye on the activities in his Branch relating to its business: There is no denial of the fact. that fraud was actually committed and in the ZIRFE-JH ROMET,A0MOW „Ay ' � virti.Pent; NO.14 74 OE Atifi � 12 opinion of the inquiry officer, lack of vigilance for long periods of time and failure of the Appellant to put systems in place and maintaining the relevant registers, perpetrated and perpetuated continuous fraud for almost four years. It also appears that the Appellant consciously and deliberately covered up the fraud and thereby facilitated commission of such fraud which resulted in misappropriation of substantial sums of money at the cost of the exchequer. There is no explanation available on the record why despite being intimated by a whistleblower and others including surprise audits the Appellant remained complacent, failed to take any action and taking steps to ensure that the delinquents were brought to book by way of appropriate action in accordance with law and that continuation of the fraud and misappropriation of public money was stopped. Instead, he pressurized the whistieblower to remain silent and ultimately removed him from the pension payment section and failed to take any action despite identification of fraud and misappropriation of funds from the pension account during surprise audits. This emboldened those who were misappropriating funds tc continue their activities for years on end. 14. � A perusal of the record also reveals that the ' ' Appellant was provided all relevant documents required . � • � ' ?r; • • � • • ,'.;:•• � .-• ; • •;;;',;" � • � • � ' 13 • by him in order to build his defence and he was also given an opportunity to cross-examine the witnesses who appeared against him. The Appellant signed the inquiry proceedings confirming the fact that he was provided all due process rights for his defence and cannot be heard at this stage to take a different stance specially so where this stance Was not even taken before the High Court. . 15. � As far as the argument of the learned counsel for the Appellant that some of the co-accused were exonerated and the Appellant deserved equal treatment is concerned, we find that the same is contrary to the record. Our examination of the record reveals that all relevant officials were charge sheeted and their cases were decided as per gravity of their involvement. It has been pointed out to us that penalties were imposed on nine (09) different delinquents and only two namely, •Shahab ucl. Din, 004 and Muhammad Said, 00-II, Incharge Government Section were exonerated because the charges against them were not proved. However, a cc- accused with the Appellant namely Shah. Nawaz, AVP/Manager was down graded by one step in his pay Seale. Syed Qurban Ali Shah, Operation Manager was demoted to next lower grade like the Appellant. Muhammad Urnar, 00-I and Abdul .Akbar, 00-II were demoted to the next lower grade. Badar Munk, 00-II and fL1/27,211TBMin .Q.E.2 � L. Bakht Sher, 0G-III were dismissed from service with immediate effect. It appears and has also been stated at the bar that except the Appellant none of the said officials has challenged the penalties imposed upon them. 16. � We have also gone through the record and find that there is no denial of the fact that there was continuous embezzlement in pensionary funds in the Main Branch, Swabi where the Appellant was posted as Branch Manager. In view of his senior and supervisory position, it was his responsibility arid duty to supervise, exercise, control and keeping a vigilant eye on each and every a.spect of business and services provided by different sections of the Branch including but not limited to pension payment section. He was not only required to be vigilant but to have direct and first hand knowledge and maintain supervision of all activities and the manner in which such activities were being conducted. It is clear and obvious to us that controls of the Appellant were lacking, he was unwilling to take responsibility for the job that had been assigned to him and was reluctant to take action despite being informed by various sources that misappropriation was being committed by officials working under his supervision and control. Further, he failed 'to informhe Regional Management, his immediate 2:ElEfIn2M4 RiZEIEfirat. EqE*:igi.E;i:2RfifEiNIIME'giiigt8O211fff.E255E11:'Y.Z.E•EadaafigtdNEtl.I'il°aiiggRFeaMPAgiaiiif;sgik"Mgta'Ctfa§:iftLa#;Lii.WC::,'i;iLI,•, 1V11,./IPPIIALM.14 74 OP Z215 superior authority about the delinquency of his subordinate staff. On the contrary, he made active efforts to cover up and hide their activities and let embezzlement continue unabated for about four years. 17. � The argument of learned counsel for the Appellant that some of the officials have been visited with lesser penalties while the Appellant was demoted to a loWer grade indefinitely is concerned, the same has not impressed us. Admittedly, other officials were at a lower level of seniority, were not responsible and answerable for all activities of the Branch, while the main focal person and Incharge of the Branch was the Appellant. Failure on his part to perform his functions efficiently, diligently and vigilantly has correctly attracted a higher penalty in view of the fact that he not only ignored the Standard Operating Procedures and failed to maintain records and conduct or cause to be conducted regular scrutiny of the records to ensure that there were no violation of the procedures • and � no � financial � mishandling, misappropriation or embezzlement of public money but also actively and deliberately ignored information and reports that embezzlement was taken place. This is clearly highlighted by his treatment of the whistleblower who had provided direct and credible information to him. In- these circumstances, we are neither persuaded no3- 1,11:kfl gymApPii:AL � 16 convinced by the argument of the learned ASC that the Appellant has been discriminated against on the issue of imposition of penalty or that his penalty was unduly hard and disproportionate to the offences committed by him. 18. As far as the duration of the penalty is concerned, the Respondent-Bank had made a categoric statement before the learned High Court to the effect that the penalty imposed on the Appellant was for a limited period of three years and that he shall be considered for promotion in accordance with the rules by the competent authorities on expiry of the said period. This has been repeated before us during the course of arguments. Further, it is settled law that after the period of penalty of an official has expired, the same does not operate as an impediment in his future prospects of promotion if Otherwise due. 19. We find that the judgment of the learned High Court elaborately and extensively discusses all pleas raised by the Appellant, has correctly applied the relevant law, rules and regulations to the facts and circumstances of the case. No illegality, failure or refusal to exercise jurisdiction or erroneous conclusions unsupported by the record have been pointed out to us. On hearing the entire Matter extensively and scrutinizing the record, we have • • 2 ,1 " � " � .2 � • • � • � • � ' � ' 13.11.11,,VEJL,11-.11:N_QE.201.44 � 17 reached the same conclusions as the. High Court and have no reason,. basis or justification to take a different view. 20. � For reasons recorded above, we find no merit in this appeal. It is accordingly dismissed. ISLANI A.B AD. 1.0.12.2020. ZR/* . fAfat Approved For Reporting'

{'id': 'C.A.1474_2015.pdf', 'url': ''}

{'id': 'C.A.1474_2015.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate/Original Jurisdiction) Present: MR. JUSTICE MUSHIR ALAM MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE QAZI FAEZ ISA MR. JUSTICE IJAZ UL AHSAN CIVIL APPEALS NO.1476 TO 1485 OF 2018 (on appeal from the judgments/orders 25.09.2018 of the Islamabad High Court, Islamabad, passed in I.C.A.365/2017 In W.P.308/2016, I.C.A.366/2017 In W.P.309/2016, I.C.A.367/2017 In W.P.310/2016, I.C.A.368/2017 In W.P.2128/2015, C.M.A.3053/2018 In I.C.A.365/2017, C.M.A.3055/2018 In I.C.A.365/2017, I.C.A.22/2018 In W.P.308/2016, I.C.A.23/2018 In W.P.308/2016, I.C.A.24/2018 In W.P.308/2016) AND C.M.A.10393/2018 and 7403/2019 in C.A.1476/2018, C.M.A.10950/2018 in C.A.1477/2018, C.M.A.10398/2018 in C.A.1480/2018, C.M.A.10951/2018 in C.A.1483/2018, C.M.A.10952/2018 in C.A.1484/2018 AND C.M.A. 10953/2018 in C.A.1485/2018 AND Crl.O.P.166/2018 in Crl.O.P.7/2016 AND Crl.M.A.2083/2018 in Crl.O.P.166/2018 AND WRIT PETITIONS NO.4270, 4723 OF 2016 AND WRIT PETITION NO.3594 OF 2018 Federal Government Employees Housing Foundation (FGEHF), Islamabad (In C.A.1476-1480/2018) Sohail Ahmed Mian (In C.A.1481/2018) Najma Siddiqi (In C.A.1482/2018) Manzar Hafeez Mian & others (In C.A.1483/2018) Khizer Hayat Khan & others (In C.A.1484/2018) Ms. Sameera Yasin & other (In C.A.1485/2018) Supreme Court Bar Association (In Cr.O.P. 166 /2018) Noor Elahi Chuhan & others (In WP 4270/2016) Multi Professional Cooperative (In WP 4723/2016) Nazeer Hussain Chuhan etc (In WP 3594/2018) …Appellant(s)/Petitioner(s) C.As N.1476 – 1485/18 etc. 2 VERSUS Malik Ghulam Mustafa & others (In C.A.1476/2018) Malik Bashir Ahmed (since deceased) through. LRs & others (In C.A.1477/2018) Zulfiqar Hussain & others (In C.A.1478/2018) Malik Dad & others (In C.A.1479/2018) Muhammad Sabir & others (In C.A.1480/2018) Malik Bashir Ahmed & others (In C.A.1481-1482/2018) Federal Government of Pakistan, Through its Secretary, Cabinet Division, Islamabad & others (In C.A.1483-1485/2018) Amer Ali Ahmed and others (In Crl.Org. P. 166/18) Chief Commissioner, Islamabad, etc. (In WP 4270/2016) Federation of Pakistan & others (In WP 4723/2016) Land Acquisition Collector, ICT (In WP 3594/2018) …Respondent(s) For the Appellant(s): Mr. Mansoor Ahmed, ASC (in CAs 1476 to 1479/18) Syed Rifaqat Hussain Shah, AOR (in CAs 1477 & 1480/18): Sardar Muhammad Aslam, ASC In CA 1481/18: In person In CA 1482/18: In person In CA 1483-1485/18: Mr. Shah Khawar, ASC IN CMA 10950/18: Mr. Khushdil Khan Malik, in- person In CMA 10951-10953/18: Nemo In CMA 10393, 10398/18: Syed Rafaqat Hussain Shah, AOR In CMA 7403/2019: Syed Iqbal Hashmi, ASC Ch. Akhtar Ali, AOR In CMA 9756/19: Syed Zulfiqar Abbas Naqvi, ASC In CMA 9210-9213 & CMA 9835/19: Mr. Sajeel Sheryar Swati, ASC C.As N.1476 – 1485/18 etc. 3 In Crl.O.P 166/18: Mr. Rasheed A. Rizvi, Sr.ASC Mr. Hamid Khan, Sr. ASC Mr. Amanullah Khan Kanrani, ASC Mr. Syed Qalb-i-Hassan, ASC Mr. Mehmood A. Sheikh, AOR Syed Rafaqat Hussain Shah, AOR Ms. Shireen Imran, ASC Mr. Liaqat Ali Tareen, ASC Mr. Aurangzeb Asad Khan, ASC Mr. Shamim-ur-Rehman, ASC Mr. Ehsan Qadir Sial, ASC In Cr.O.P 166/18: Mr. Naeem Bokhari, ASC (for Private Respondents) Ch. Akhtar Ali, AOR & for Petitioners (in W.Ps 4270/16, 4723/16 & 3594/18) On Court Notice: Mr. Niaz Ullah Niazi, AG Islamabad For CDA: Ch. Riasat Ali Gondal, ASC Raja Abdul Ghafoor, AOR For Federation: Mr. Sajid Ilyas Bhatti, Addl. AGP For Private Respondents: Syed Feisal Hussain Naqvi, ASC in CAs 1476-1480/18: Ch. Hassan Murtaza Mann, Adv. Dates of Hearing: 15th,16th,20th,21st,22nd,23rd May, 2nd, 7 th,10 th,23rd October, 12th,25th November of 2019 and 7th,9th,13th, and 14th of January, 2020. C.As N.1476 – 1485/18 etc. 4 JUDGMENT MUSHIR ALAM, J.— Since the issue involved in all these cases is almost identical, therefore, we find it expedient to decide the titled cases together through this common judgment. Facts 1. Facts forming matrix of the proceedings in hand are that on 20.01.2014, the Senate Committee on Housing and Works recommended that Sector F-14 be allocated by Capital Development Authority (herein referred to as CDA) to Federal Government Employees Housing Foundation (herein referred to as FGEHF) [(converted into authority under Federal Government Employees Housing Authority Act, 2020 during the pendency of proceedings], the appellant herein, for preparing a housing scheme. After meetings and deliberations, the CDA and FGEHF agreed to initiate a housing scheme in Sector F-14 with mutual collaboration. Accordingly, Secretary Ministry of Housing and Works initiated a summary on 06.01.2015 regarding acquisition of land for the FGEHF in Sector F-14 and some parts of Sector F-15 in Islamabad Capital Territory (ICT). The Prime Minister approved the summary on 01.05.2015 and notifications under Section 4 and later under Section 17 of the Land Acquisition Act of 1894 (herein referred to as LAA, 1894) were issued by the Commissioner ICT on 20.05.2015 and 04.12.2015 respectively. On 29.09.2016, a development contract was awarded to the Frontier Works Organization (FWO). Then an award was announced by the Collector on 15.11.2016 regarding land in F-14. The Commissioner ICT issued a notification regarding land in F-15/3 & F-15/4 on 15.06.2017. The Collector then announced the award for land situated in revenue estates of Tarnol and Jhangi Syedan in ICT in favor of FGEHF on 06.07.2017. The land owners/natives of the area challenged the above said notifications and the awards in writ jurisdiction before the learned Islamabad High Court, Islamabad, C.As N.1476 – 1485/18 etc. 5 which were allowed vide judgment(s)1 dated 23.10.2017. The judgment(s) were challenged through Intra-Court Appeals No. 364/2017 to 368/2017, 412/17-415/17, 417/17, 22/18-24/18, 306/08 and 307/18, which was maintained through the common impugned judgment(s) dated 25.09.2018.2 2. The Appellant/FGEHF, Islamabad (since succeeded by Federal Government Employees Housing Authority), have, with the leave of the Court, filed Civil Appeals No.1476 to 1480/2018, assailing the judgment rendered by learned Division Bench of the Islamabad High Court, Islamabad, passed in the Intra-Court Appeals noted above whereby not only the acquisition proceedings carried out under the LAA,1894 but, also all the actions and orders relating to acquiring of land for the appellant in Sectors F-14 and F-15, Islamabad (subject sectors) were declared illegal, void and without jurisdiction and as such notifications impugned in writ petitions were also set aside. The impugned judgment held that the land within Islamabad Capital Territory can only be acquired by the Capital Development Authority under the provisions of the Capital Development Authority Ordinance, 1960 (herein referred to as the CDAO, 1960), which being special and later law, has precedence over the LAA 1894, which was held to be general in nature. The Learned bench further directed that ‘the land owners and owners of built up properties who have received the payment through Land Acquisition Collector to return the amount within (3) three months from the date of judgment through pay orders”. The Appellant was left with discretion to recover the amount paid for their own purposes, to the private parties/contractors, through their own mechanism and or legal process. Lastly, CDA was held to be entitled “to implement the master phased program as provided in section 11 and 12 of the CDAO, 1960 and develop Sectors F-14 and F-15 as per their own decision in consultation with the Federal Government, if so required”. 1 Since reported as Malik Bashir Ahmed v. Federal Government of Pakistan (PLD 2018 Islamabad 68) 2 Reported as FGEHF and others v. Malik Ghulam Mustafa and others (PLD 2019 Islamabad 1) C.As N.1476 – 1485/18 etc. 6 3. The Appellants, in Civil Appeals No.1481 to 1485/2018, being serving and retired Government servants, are the allottees of plots/land in Subject Sectors. The Appellants have also assailed the judgment of the learned Division Bench of the Islamabad High Court and claimed their respective plots/land as they have already deposited the requisite amount since long with the Appellant in lieu of their allotted plots. 4. Persons considering that they may be prejudiced by order that may be passed in instant proceedings have made applications to be added as party. Such persons fall in two categories, the first being serving and retired federal government employees, who have been offered plots (CMA 10950, 10951, 10952 & 10953/2018 filed by the allottee/federal government employees) and second category of persons are the land owners, whose land is subject matter of acquisition, who have also filed (CMA No. 7403/2019, 9210-9213, 9835/19 & 9756/19) applications to be added as party as it is claimed that unless they are made party and heard, they will be seriously prejudiced. All such persons were aware of the acquisition proceedings, and some also made applications before the Islamabad High Court, some have directly approached this Court. All such persons claim to have interest in the outcome of the instant proceedings, either as allottee or as land owner, and all such persons have interest common to persons already represented by eminent counsels. Without entering into much debate as to such persons, being necessary or proper party, at this stage of proceedings, in order to do complete justice3, we consider it expedient to hear all such persons without formally adding them as party to the respective appeals or petitions, to avoid delay in the matter. Such course is acceptable to all such parties and it would also meet the ends of justice4. However C.M.A.10393 (in CA 1476/18) and CMA 10398/18 (in CA 1480), moved by the FGEHF, Appellant, to add CDA as party is allowed. CMA 35/19 (in CA 1477/18) to bring legal heirs of Respondent No.1 on record is granted, subject to all just exceptions; amended title may be filed and 3 Multiline Associate v. Ardeshir Cowasjee PLD 1995 SC 423 (para 11) 4 Federation of Pakistan v Muhammad Aslam 1997 SCMR 607 C.As N.1476 – 1485/18 etc. 7 taken on record. All other CMAs seeking permission to bring additional documents on record, file reports and or compliance etc. are granted, subject to all just exception and, disposed of accordingly. 5. The land owners and residents of the locality, whose land has been acquired, have also filed Writ Petitions No.4270 & 4723 of 2016 and 3594 of 2018 before the learned Islamabad High Court, challenging the very acquisition of the land for the purposes of, inter alia, developing a housing society for lawyers etc. However, on 27.12.2018, while hearing of Criminal Original Petition No.166/2018, at the request of their counsel and land owners present in Court, subject Writ Petitions were requisitioned from the concerned High Court so that the same may be considered along with Civil Appeals No.1476/2018 etc. 6. The Supreme Court Bar Association of Pakistan (herein referred to as the SCBA), through its President, filed Criminal Original Petition No.166/2018, which is an off shoot of Cr.O.P 41/17 seeking implementation of the order of this Court dated 10.08.2018 (arising out of C.P 38/2013 SCBA v Amer Ali Ahmed Chief Commissioner Islamabad) with regard to a settlement arrived at between the office bearers of the SCBA and the FGEHF & other government functionaries relating to issuance of Notification under section 4 and 17(4), decision of objections under section 9 and issuance of Award under Section 11 of the LAA, 1894. According to learned ASC for the SCBA, Mr. Rasheed Rizvi, settlement arrived at by and between the Respondents in Cr.O.P 166/18 has not been complied with. He also opposed Cr.MA No. 2083/18 7. Mr. Nazir Hussain Chohan represented by Mr. Naeem Bukhari, Senior ASC, has filed Cr.MA No. 2083/18 in Cr.O.P No. 166/2018 seeking setting aside of Order dated 10.8.2018 passed on Cr.O.P 41/2017 (which is an off shoot of CP 38/2013 filed by SCBA) as noted above, Cr.O.P No.166/2018 and Cr.MA No. 2083/18 will be attended separately. C.As N.1476 – 1485/18 etc. 8 I. Judgment of the Honorable Islamabad High Court: General Overview: 8. The learned bench of the Islamabad High Court considered all the facts in detail from paragraph 1 to 9, including the issuance of Notification by the Additional Deputy Commissioner Revenue under Section 4, 6 and 17 of the LAA, 1894 dated 20.5.2015 which was later converted into the amended notification dated 02.12.15. The relevant portion of the same has been reproduced below: "WHEREAS, it appears to the Land Acquisition Collector, Islamabad District Islamabad that the land is likely to be taken for Federal Government Employees Housing Foundation, under the administrative Control of Ministry of Housing and Works; Government of Pakistan for its expense for public purpose namely for launching housing scheme in Sector F-14 as well as contiguous area of F-15 prior to G. T. Road falling in Zone-1 for the Federal Government Employees in villages Tarnol, Mara Sumbal Akku, Mara Sumbal Jaffar, Thalla Syedan and Jhangi Syedan, Tehsil and District Islamabad. It is hereby notified that the land in the locality described below is likely to be acquired for the above purpose. (Emphasis supplied)." 9. The learned bench then elaborately explains the Scheme of Sector F-14 & 15 in paragraph 14 to paragraph 16 when the notification by the Commissioner later culminated into an Award dated 15.06.2017 in respect of land situated in Sector F-14 (measuring 7003 Kanals & 10 Marlas) namely Moza Tarnol, Jhangi Syedan, Thallah Syedan, Mehra Sumbal Akku, and Mehra Submal Jaffar. The second award was issued by the Land Acquisition Collector vide notification dated 28.9.2017 for land situated in F-15/3 & 4 (measuring 300 Kanals) falling in Moza Tarnol and Jhangi Syeda. 10. In paragraph 17 to 22, the Learned Bench considered the principles of interpretations enunciated by apex court as to general and special law and then compared LAA, 1894 to CDAO, 1960. In paragraph 23 to, arrive at the conclusion that: “ we are also of the view that CDA Ordinance, 1960 is purpose specific law to cater the requirement of new capital of Pakistan and such kind of enactment provides a complete mechanism in itself, which has no nexus with the Land Acquisition Act, 1894.” It was further held that FGEHF, should have invoked the CDAO, 1960 and not LAA 1894 for the acquisition of C.As N.1476 – 1485/18 etc. 9 land, and the things were not done in the manner required by law, to buttress the conclusion, learned bench relied on Muhammad Anwar etc. v Mst Ilyas Begum etc5. II. Reasoning of the IHC i. Intent and Purpose of the Legislation: 11. The learned bench, to discover the intent and purpose of the impugned legislation, examined the contemporary provisions of both the statutes. In paragraph 24 of the impugned judgment, learned bench placed reliance on the case of Syed Mehmood Akhtar Naqvi vs. Federation of Pakistan6 to hold that: “no provision should be rendered meaningless and there was no scope of placing unnatural interpretation on the meaning of language used by the legislators, especially when the language of legislative provision was clear, it was not the duty of the Court to either to enlarge the scope of legislation or the intention of the legislators.” It was further concluded that: “It is also settled that in case of conflict, preference is to be given to the new law and the implied repeal of earlier law could be inferred only when there was enactment of a later law which had the power to override the earlier law, and was totally inconsistent with the earlier law and when there are two laws, the earlier and the later law, could not stand together, therefore, later laws abrogate the earlier contrary laws.” For the conclusion so arrived at reliance was placed on the judgments rendered in the cases of Lahore (Inland Revenue) RTO v M/s Almakdi International7, and Tanveer Husain v. Division Superintendent Pakistan Railways8. 5 PLD 2013 SC 255 6 PLD 2012 SC 1089 7 2013 PTD 2125 8 PLD 2006 SC 249 C.As N.1476 – 1485/18 etc. 10 ii. Public Purpose under the CDAO, 1960: 12. In paragraph 25 to paragraph 27 of the impugned judgment, it was held that Section 11 and Section 12 of the CDAO, 1960 provided for the larger purpose of the development of ICT and the acquisition of land for development of specified area, which shall be done under Section 22 of the CDAO, 1960. It was further held that that the requirements enunciated within Section 4 of LAA, 1894 had been applied by implication within Section 22 of CDAO, 1960. Although, the term “public purpose”, originally provided under Section 4 of LAA, 1894, was not defined under the CDAO, 1960, the latter provides for a different scheme for the acquisition of land as mentioned above. Given the existence of the larger purpose within the CDAO, 1960, it was held that the acquisition of land under the LAA, 1894 for public purpose is not acceptable. It was further mentioned that the ‘public purpose’ needs to be seen in the light of the ‘general interests of the community’ as opposed to the ‘particular interest of the individual’. Therefore, it was held that“it is not permissible to take land of one and give it to another in private interest”. Reliance was placed on Ghulshan Hussain etc. v Commissioner (Revenue), Islamabad, etc.9, Smt. Somavant and Others v. The State of Punjab and Others10, Suo Moto Case No. 13 of 200711. 13. In paragraph 28, the learned bench then relied on the English saying “you cannot rob Paul to pay Peter” to further elaborate how the interests of the general community must be furthered instead of the interests of the individual for ‘public purpose’ as only the community of Federal Government servants are the beneficiaries under the objectives of the Federal Government Employees Housing Foundation and not the general community at large. Reliance was placed on Muhammad Akbar v. Commissioner Rawalpindi12, Dr Nasim Javaid v. Lahore Cantt. Cooperative Society Ltd13. 9 2000 YLR 1711 10 AIR 1963 SC 151 11 PLD 2009 SC 217 12 PLD 1976 Lah 747 13 PLD 1983 Lah. 552 C.As N.1476 – 1485/18 etc. 11 iii. Federal Government Employees Housing Foundation as a Private Enterprise: 14. In paragraph 29, the learned bench then builds on the proposition regarding public purpose with respect to the FGEHF, as a company established with a specific objective, which does not cover private individuals as the FGEHF can only provide housing to its members by remaining within the scope of its objectives. This is to be categorized as a private interest only to be exercised in favor of the members of the FGEHF. Reliance was placed on Muhammad Ishaq etc. v. Govt. of Punjab etc14. Therefore, it was held that: ”when they use the state machinery with their limited objective under the Companies law, their entire working has to be seen in the light of their objective only and the purpose for which the land was acquired was too limited to hold that the same would be used for public purpose” 15. In Para 26, 29, 30 and 35 of the impugned judgment, the learned bench concurred with the single judge that the land was acquired under the LAA, 1894 and not under the CDAO, 1960. The learned bench, relying on the arguments of the private respondents, further agreed with the single judge that the FGEHF, being a private enterprise, and a juristic person, any land acquisition, if at all was permissible, should have been under the CDAO, 1960. The FGEHF was treated as a company, no different than a land developer, society, and therefore, not permitted to initiate any land acquisition proceedings in any part of ICT. iv. Enactment of Law to Qualify as an Exception within Art. 24(3) of the Constitution, 1973. 16. In Para 29 of the impugned judgment, it was also ruled that certain exceptions are provided under sub-article (3) of Article 24 (wrongly quoted as Clause 3 of Article 4) of the Constitution, “……that for acquisition of any property under any one of the exceptions, a law has to be enacted. It follows, therefore, that in any case, without specific 14 2002 SCMR 1652 C.As N.1476 – 1485/18 etc. 12 law, no person can be deprived of from his property or the possession taken by the government.” Reliance was placed on Nazim F Haji, Chief Citizen Police Liaison Committee Karachi v. Commissioner Karachi15. v. Property Rights within the Constitution, 1973 17. The learned bench also relied on Article 24 of the Constitution, in extenso within paragraph 30 to, draw a conclusion that “in accordance with law” as referred in the Article is CDAO, 1960 and acquisition of land for the Appellant was considered to be for self- serving benefit of its member, do not figure out under the scheme of the CDAO, 1960 for which reliance was placed on Suo Moto Case No. 13 of 200916. vi. Determination of Public Purpose: 18. The learned bench, in Paragraph 30 of the impugned judgment, recognized that determination of public purpose objectively is domain of the Government and is subject to judicial review. Reliance was placed on Messer Eden Developers Pvt. Limited Pakistan v. Government of Punjab etc.17. vii. Regulatory Capture: 19. Learned bench of IHC, from paragraph 31 to 34, viewed the acquisition of land for the Appellant in concert with CDA authority as a ‘regulatory capture’, and not in public interest. For this conclusion, reliance was placed on Barrister Sardar Muhammad v. Federation of Pakistan18, Lahore Development Authority v. Mrs. Imran Tiwana19, Muhammad Ashraf Tiwana v. Pakistan20, and Mrs. Imran Tiwana v. 15 PLD 1993 Kar. 79 16 PLD 2011 SC 619 17 PLD 2017 Lah. 442 18 PLD 2013 Lah 343 19 2015 SCMR 1739 20 2013 SCMR 1159 C.As N.1476 – 1485/18 etc. 13 Province of Punjab21. The learned Bench also heavily relied on The Murree Brewery Co Ltd. V. Pakistan through Secretary to Govt. of Pakistan, Works Division22. 20. In Paragraph 33 of the impugned judgment, the learned Division bench extensively dilated upon purported illegalities and irregularities committed by CDA and considered various provisions of the CDAO, 1960, Islamabad Land Disposal Regulations 2005 (ILDR, 2005), and ICT Zoning Regulations 1992, inter-alia, and read them to exclusion of the LAA 1894. The learned bench further viewed that acquisition of land in Sector F-14 under the LAA, 1894, at the behest of FGEHF, is in violation of ILDR, 2005. No agency other than the CDA can acquire land in the Specified Area which comprised of five (5) Zones viii. State Largesse: 21. In paragraph 34, of the impugned judgment it was opinioned that acquisition of land should have been routed under the CDAO, 1960, and concept of State largesse has been flouted. It was further held that the land could only be acquired under Article 173 of the Constitution. The Appellant, a company registered with SECP, is no different than any other land developers (since given status of authority under FGEHF Authority Act, 2020). Any permission or NOC extended by the CDA Board or Authority were held to be illegal and void. It was concluded that acquisition of land within Islamabad Capital Territory is within the domain of CDA Ordinance, in terms of Article 24 Constitution of Pakistan, read with Article 173, and application of any other law and procedure stands excluded. Land in specified areas could only to be utilized in accordance with Section 11 and Section 12 of the CDAO, 1960. Therefore, the learned bench held that the Notification under Section 4 of the Land Acquisition Act was “illegal and void.” 21 PLD 2015 Lah. 522 22 PLD 1972 SC 279 C.As N.1476 – 1485/18 etc. 14 III. Leave Granting Order 22. In the back drop of above factual and legal matrix, leave was granted in C.A. No.’s 1476 to 1485/2018 vide order dated 06.12.2018 inter-alia to consider whether: 1. Capital Development Authority (CDA) under the Capital Development Authority Ordinance, 1960 (the Ordinance) has exclusive jurisdiction to acquire land and it excludes acquisition under the Land Acquisition Act, 1894 (the Act); 2. The provisions of the Ordinance exclude those of the Act with respect to acquisition of land for a public purpose; 3. Acquisition for a housing scheme for Federal Government Employees and allied group constitutes a valid public purpose; 4. Acquisition under the Act becomes State largesse under Article 173 of Constitution of the Islamic Republic of Pakistan, 1973 read with Section 16 of the Act, and 5. In view of the alternate and efficacious remedy available under Section 18 of Act, the constitutional petitions before the learned High Court were not maintainable. 6. In the meantime, the operation of the impugned judgment is suspended. Any acquisition would be subject to the final decision of the instant cases and any construction raised from today onwards shall be at the risk and cost of the person(s) doing so. We have extensively heard the arguments of all the learned Counsels for the parties and heard some of the parties present in persons as well, perused the record with the assistance of all the learned Counsels and parties in person. IV. Judgment of the Supreme Court: 23. In order to consider the points of determination, as noted in leave granting order, regarding which of the two competing or comparable statutes in the field (i.e. LAA, 1894 or CDAO 1960), and if some of the provisions in CDAO, 1960, essentially relating to land acquisition, have precedence over the provisions of LAA, 1894 or otherwise. The principles to adjudge which of the statutes and provisions of which of the competing statutes are to be given C.As N.1476 – 1485/18 etc. 15 preference, are to have dominance in repealing, or overriding effect, over the other becomes quite challenging. I. The Applicability of the Land Acquisition Act, 1894 within ICT a. LEGISLATIVE ORIGIN OF THE LAA, 1894: 24. The State of Pakistan inherited The Land Acquisition Act, 1894 as a colonial legacy. It was enacted with an object to acquire any land needed by the Government for public purpose and for the Companies. “It provides complete indemnity to the owner and no property is to be acquired without proper and adequate compensation”23. The present controversy is confined only to the acquisition for public purpose. 25. The LAA, 1894 provides an elaborate procedure and mechanism for the acquisition and vesting of land, determination, payment of compensation, inquiring into measurement, value claims, award(s) by the collector, and hearing of objections as to adequacy and apportionment between the claimants. In addition, it also provides the complete hierarchy for adjudication of objections relating to the adequacy, or otherwise, of compensation24 leading up to the Supreme Court25. 26. The LAA, 1894, remaining a colonial legacy, is still retained in statute books by India and Pakistan alike. It was given protection under the Government of India Act, 193526, which was succeeded by the Indian Independence Act, 194727. It was then adapted vide Governor General’s Order No.20 of 1947, also known as Pakistan Adaptation of Existing Pakistan Laws Order 194728, 23 PLD 2010 SC 719 (Paragraph 5). WAPDA v Hira Begum (1972 SCMR 138). 24 Section 18 of LAA, 1894 25 Section 54 of LAA, 1894 26 See Article 292 and 293 27 See Section 18 28 See Section 54(2) C.As N.1476 – 1485/18 etc. 16 eventually finding its way into the Constitution of Pakistan 195629. The Constitution of Pakistan 196230 also shielded the LAA, 1894 and it was finally adopted by the Constitution of Pakistan, 197331. 27. Pursuant to Section 1(2) of the Central Laws (Statute Reforms) Ordinance 1960, 32the LAA, 1894 was amended to make it applicable to whole of Pakistan. On 30th March 1970, by virtue of Section 4 of the Province of West Pakistan (Dissolution) Order 197033, the province of West Pakistan was dissolved and four Provinces, Islamabad Capital Territory (ICT) and Centrally Administered Tribal Areas were created. As per Article 19 of the aforementioned Order of 1970 which stated that “all existing laws shall continue in force, so far as applicable and with necessary adaptation, until altered or repealed or amended by the appropriate Legislature or other competent authority”. 28. The Legal Implication of the Presidential Order 1 of 1970 was considered in the case of Islamabad Club v. Punjab Labour Court etc.34 wherein it was held that “Under the Interim Constitution of 1972 and the 1973 Constitution the Federal Capital of Islamabad has continued to be a distinct territory under federal administration, but no specific provisions seem to have been made for its governance, with the result that the previous arrangements have to continue. The result of these successive legal instruments in that the laws, which were applicable to the territory of Islamabad before the dissolution of the Province of West Pakistan, and the designation of Islamabad as federally administered area would continue to operate as existing laws, until repealed or altered by the competent Legislature.” 29 See Article 224 30 See Article 225 31 See Article 268 32 PLD 1960 Central Statutes 238 “(a) The Province of East Pakistan and Province of West Pakistan and; (b) Such other States and territories as/or may become included in Pakistan whether by accession or otherwise …” 33 PLD 1970 Central Statute 218 34 PLD 1981 SC 81 C.As N.1476 – 1485/18 etc. 17 29. In order to remove any doubts, as to applicability of LAA, 1894 in Islamabad Capital Territory (ICT), and in exercise of legislative competence conferred under the enabling provisions and Constitutional mandate35, as noted herein, the Federal Laws (Revision and Declaration) Ordinance No. XXVII of 198136 was enacted on 8th July 1981 which enlisted37 laws in the IVth Schedule vide item 938 thereof; Sections 3, 9, 14, 43, 45, 47, and 54 were substituted and amended to make LAA, 1894 compatible in its application to ICT. Only certain provisions of the LAA, 1894, and not the entire Act, were amended in order to clarify its application to the ICT. This action manifest that the LAA, 1894 was applicable to ICT at all times and, any doubts as to its applicability were legislatively removed by virtue of the Ordinance enacted. 30. The reinforcement of the LAA, 1894, with necessary substitution and amendment, was made during currency of CDAO 1960 is a clear manifestation of the intention of the Federal Legislature that LAA, 1894 applies with full force in ICT and is not eclipsed by the provisions of CDAO 1960 as held in para 24 of the impugned judgment. Thus, merely because the CDAO, 1960 was enacted later would not be the sole determining factor to give it dominance or overriding effect over the LAA, 1894. In the case reported as Abdul Ghani & another v Province of Baluchistan and another39, the learned division bench of the Balochistan High Court, while examining the applicability of LAA, 1894 with competing provisions of ‘land acquisition’ contained in the ‘Baluchistan Acquisition of Land (Housing and Development Schemes in Rural Areas) Act XVIII of 1974’, in held as follows40:- “12. The next question which crops up is as to whether the promulgation of the Baluchistan Acquisition of Land Act of 1974 would repeal the Central Act of 1894 (or) not by its own force. According to the provision of sub-Article (1) of Article 35 Oer Article 142 (d) 36 PLD 1982 CS 10 37 Under Section 5 38 PLD 1982 CS 113 39 PLD 1982 Q 63 40PLD 1982 Q 63. Para 12 at Page 67. C.As N.1476 – 1485/18 etc. 18 268, the repeal should be express and unless that is done expressively the Central Act would continue to remain in force as an existing law under Article 268(1) of the Constitution. This argument of Advocate General further finds support from the fact that the Provincial Act, was an Act of limited application when it was introduced. It only applied at that time to Housing and Development Schemes in rural area and later to urban areas as well. With this limited application it could not mean to repeal the Pakistan Land Acquisition Act of 1894 even by implication….” b. THE TESTS WITHIN THE CONSTITUTION TO ADJUDGE THE CONSTITUTIONALITY OF LAW: 31. To determine the repeal, overriding effect, repugnancy, vires, intra-vires or otherwise of any competing or comparable statutes, or analogous provisions contained therein, several litmus tests, tools of interpretations, and legal doctrines are applied. These accessories of interpretation are harvests of long drawn jurisprudential expositions and judicial interpretational wisdom culled by the superior courts. The tests to determine the validity of legislation are applied, inter-alia, on the touchstone of Constitution, legislative competency, limitation and distribution of legislative authority between Federal and Provincial legislature, doctrine of occupied field, pith and substance, special and general law, earlier and later law, delegated and subordinate legislation, directory or mandatory enactment or provisions, effect of obstante or non-obstante provisions in any enactment or otherwise. These are some of the illustrative and non-exhaustive tools of interpretation and doctrines applied by the superior courts to adjudge the legitimacy, vires, ultra-vires, repeal, overriding, or supremacy of one statute over the other. When the conflict between two or more competing or comparable statues by the same, or contemporaneous, legislature is to be resolved, it becomes all the more challenging to decipher the real intentions of the legislature and dominance of one statute or its provisions over the other. As noted above, the foremost tool of interpretation of any statute is the Constitution which sets the ‘gold standard’ to adjudge constitutionality, repugnancy, and validity and, vires of any legislative instruments or, provisions contained therein. C.As N.1476 – 1485/18 etc. 19 32. In the succeeding paragraphs, we will apply litmus test as to the legitimacy, or otherwise, of the LAA, 1894 as provided for in the Articles 8, 24, 227 and other enabling provisions of the Constitution, 1973. In addition to the Constitutional filter, other tools such as legislative history, statement of object, and the preamble of a statute are important tools in deciphering intention, legitimacy, repugnancy, validity, and overriding or dominance of competing statutes, or provisions contained therein, which is relevant in the instant case. In order to appreciate the rival contentions of the parties we have examined the legislative origin, history, object, purpose and preamble of LAA, 1894 and CDAO, 1960. c. THE TEST WITHIN ARTICLE 8 33. Article 8 sets down a twofold gold test to adjudge the constitutionality of any pre and post 1973 Constitutional regime of laws. Sub-Article (1) of Article 8 of the Constitution, 1973 provides that any law enacted prior to the 1973 Constitution is to be filtered through the lens of fundamental rights to earn legitimacy. For convenience, it has been reproduced below: “any law or any custom or usage having force of law, in so far it is inconsistent with the fundamental rights shall, to the extent of such inconsistency be void.” Whereas, Sub-Article (2) of Article 8 attends to, post 1973 Constitution, legislative regime. It restrains the Federal and Provincial Government “not to make any laws which takes away or abridges the (fundamental) rights so conferred”. Any breach of such constitutional restraint is visited by invalidation to the extent that such invalidation infringes fundamental rights. C.As N.1476 – 1485/18 etc. 20 d. THE TEST WITHIN ARTICLE 227(1) 34. First part of Article 227(1), read with Article 268(3), further requires all “existing laws” [i.e. per Article 268(7) that existed immediately before the date the Constitution of 1973 “came into force”41], shall be whittled down per the injunction of Islam as laid down in Quran and Sunnah. A similar restraint is placed on legislative authority of either of the Legislatures under the second part of Article 227(1) within the 1973 Constitutional regime, which forbids that no laws could be framed in breach of Islamic Injunction, however, the only caveat is that ‘personal laws’ applicable on non-Muslim citizens are not liable to be filtered through the regime of Islamic injunctions42. 35. In the plethora of cases adjudicated by the Courts, the LAA, 1894 has been held to be in conformity with Article 24 (2) of the Constitution, 1973. One may refer to Muhammad Ishaq v. Government of Punjab43, under which the LAA, 1894 was found to be per the injunction of Quran and Sunnah as ordained under Article 227 of the Constitution 1973. One may also see the five-member Bench decision in the case of Hafiz Muhammad Amin v. Islamic Republic of Pakistan and others44 where the laws relating to compulsory Land Acquisition were held to be validly made, having constitutional protection, and cannot be held ultra-vires by the court. The Federal Shariat Court, in the case cited as Islamization of Laws45, not only held the CDAO, 1960, barring provisions freezing of compensation, to be in accordance with Article 24 of the Constitution, 1973 but other laws relating to Land Acquisition were also held to be validly made. 36. It may be observed that not only the LAA, 1894 but the CDAO, 1960 falls within the category of “existing law” that enjoys constitutional protection under Article 268(1) and, irrespective 41 See Article 265(2) 42 See Article 227 (3) ibid 43 2002 SCMR 1652 44 PLD 1981 FSC 23, at page 41 45 PLD 1985 FSC 221 at pages 242-243, 263 C.As N.1476 – 1485/18 etc. 21 whether such (existing) laws have been adapted as required under sub- Article (3) and (4) thereof or not, the courts, under the constitutional dispensation, are required to enforce such (existing) laws in accordance with the provisions of Constitution. The assumption of the learned Division Bench that the LAA, 1894 has no constitutional backing, in view of discussion herein, cannot be sustained. e. THE APPLICATION OF THE LAA, 1894 IN ICT: 37. In the present situation the LAA, 1894 continued in full force and effect as a Federal legislation by virtue of Article 268(1) & (7) of the Constitution, 1973 as an “existing law”, meaning thereby that all laws in force in Pakistan, or any part thereof, or having extraterritorial validity immediately before commencing day i.e. 14 August, 197346, will continue to enjoy the protection under the Constitution. Consequently, the LAA, 1894, which is protected as Federal Law, was amended from time to time by all the Provinces by virtue of the power devolved under the successive Constitutions of Pakistan, as noted above and, by the Parliament to the extent of Islamabad Capital Territory47. As discussed earlier in paragraph 29, the applicability of LAA, 1894 in Islamabad Capital Territory was due to the relevant amendments made to the LAA, 1894 by the enactment of The Federal Laws (Revision and Declaration) Ordinance No. XVII of 198148. Therefore, the affirmation of the LAA, 1894 being applicable to ICT, after the enactment of CDAO, 1960, serves as conclusive evidence that the legislature was cognizant of the earlier enactment, yet chose to contemporaneously apply the LAA, 1894 to the ICT. Needless to say that ignorance cannot be attributed to the legislature. Hence, the conclusion arrived by the learned bench in paragraph 24 of the impugned judgment cannot be sustained. 46 see Article 260 47 See Article 142(b) of the Constitution of Pakistan, 1973 48 PLD 1982 CS 10 C.As N.1476 – 1485/18 etc. 22 f. IGNORANCE OF EARLIER LAW CANNOT BE ATTRIBUTED TO THE LEGISLATURE 38. Needless to say, that Legislature is presumed to know the ‘existing laws’, judicial pronouncements, and general principle of law49. The Legislature must be presumed to know the facts and conditions rendering a statute expedient and beneficial50. In a case from the American Jurisdiction where the Congress subjected specific categories of ticket sales to taxation but failed to cover another category, either by specific or by general language, the Court refused to extend the coverage. To do so, given the “particularization and detail” with which the Congress had set out the categories, would amount to “enlargement” of the statute, rather than “construction” of it51. Relatedly, “[w]here Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of a contrary legislative intent.”52 39. In a judgment reported as State of M.P v. Kedia Leather & Liquor and others53, the Indian Supreme Court, while attending to doctrine of implied repeal, held that there is a presumption against repeal by implication and the reason of this rule is based on the theory that the legislature, while enacting a law, has the complete knowledge of existing laws on the same subject matter. Therefore, when the legislature does not provide a repealing provision, the intention is clear not to repeal the existing legislation. However, the presumption of 49 NS Bindra’s Interpretation of Statutes Tenth Edition by Lexis Nexis, Page 235. 50 Raval & Co. v. Ramachandran AIR 1967 Mad 57, at page 69. 51 Iselin v. United States, 270 U.S. 245, 250 (1926). See also Lamie v. United States Trustee, 540 U.S. 526, 537 (2004) (courts should not add an “absent word” to a statute; “there is a basic difference between filling a gap left by Congress’ silence and rewriting rules that Congress has affirmatively and specifically enacted”). Obviously, the line between the permissible filling in of statutory gaps and the impermissible adding of statutory content may be indistinct in some instances, and statutory context, congressional purpose, and overriding presumptions may tip the scales. For example, the Court made no mention of the “absent word” rule in holding that a reference to “any entity” actually meant “any private entity” in the context of preemption. Nixon v. Missouri Municipal League, 541 U.S. 125 (2004) (preemption of state laws that prohibit “any entity” from providing telecommunications service. Does not preempt a state law prohibiting local governments from providing such service). 52 Andrus v. Glover Const. Co., 446 U.S. 608, 616-17 (1980) (citing Continental Casualty Co. v. United States, 314 U.S. 527, 533 (1942) 53 (2003) 7 SCC 389 C.As N.1476 – 1485/18 etc. 23 implied repeal can be rebutted. Repeal is inferred by necessary implication when the provisions of the later law are so inconsistent with, or repugnant, to the provisions of the earlier law that the two cannot stand together54. Although, if the two can be read together and some application can be made of the words in the earlier Act, repeal will not be inferred. The necessary questions to be asked are; (i) Whether there is direct conflict between the two provisions; (ii) whether the legislature intended to lay down an exhaustive Code in respect of the subject matter replacing the earlier law and (iii) whether the two laws occupy the same field. The doctrine of implied repeal, based upon the theory that the legislature, which is presumed to know the existing law, did not intend to create any confusion by retaining conflicting provisions and, therefore, when the court applies the doctrine, it does no more than give effect to the intention of the legislature by examining the scope and the object of the two enactments and by a comparison of their provisions. 40. From what has been discussed above, the ignorance of existing laws, judicial pronouncement, and judicial interpretation of law by the highest judicature of the State cannot be attributed to the legislature. Thus, it could be said that the legislature was fully cognizant that LAA, 1894, being existing law, deals exhaustively and elaborately with acquisition of land for ‘Public Purpose’ and Companies, against consideration and under law, yet the legislature still chose to enact CDAO, 1960, and in its wisdom provided Chapter VI of the CDAO, 1960 for acquisition of land, but only for object and purpose of planning and development of Islamabad Capital Territory55. The legislature felt it necessary for the CDAO, 1960 to be bestowed with the power to acquire land for the effective implementation of planning and development of Islamabad Capital Territory so the authority may not necessarily have to fall back to the LAA, 1894 for the acquisition land for the purpose of the Ordinance. 54 Ibid. Paragraph 14. 55Preamble, CDAO, 1960. C.As N.1476 – 1485/18 etc. 24 41. It may be observed that in Pakistan both the Federal and Provincial legislatures, in its wisdom, have promulgated numerous legislative instruments for the purpose of ‘planning and development’ of various cities falling in their respective legislative territory. We have noted that these statutes have either wholly or partially adopted the land acquisition mechanism provided for in the LAA, 1894 either by reference, adaptation or explicitly excluded the applicability of LAA, 1894 in the legislature’s sole wisdom and prerogative. The intention of the legislature, as to adoption by reference or otherwise, exclusion or giving the special enactment overriding effect over other comparable statute can be ascertained by a cursory reading of such special statute (Various special statutes providing for ‘planning and development’ of cities and region for illustrative purposes are discussed in succeeding paragraph 65). Therefore, the CDAO, 1960 does not override the provisions of the LAA, 1894 for Islamabad Capital Territory but each legislation dwells within the extent of its own unique purpose. 42. In the light of discussion made herein, the CDAO, 1960 was examined, which revealed that the legislature did not completely exclude the application of LAA, 1894 in Islamabad Capital Territory, for Public Purpose and for Acquisition by Companies. The conspicuous absence of a ‘non-obstante’ or overriding clause in CDAO, 1960 manifests the intention of the legislature that each of these contemporaneous statutes to exist side by side and operate in their respective domain. It is not the case of any of the party that there is a competing claim of acquisition of land, under respective statute either for public purpose, under LAA, 1894, or for the Development and Planning of ICT, under the CDAO, 1960. Therefore, it was not considered appropriate in present proceedings to dilate as to which set of proceedings for competing acquisition of land may have preference over the other. C.As N.1476 – 1485/18 etc. 25 43. In order to determine the amount of compensation to be awarded for the land acquired, the criteria to consider matters with respect to the same is provided for under S.23 of the LAA, 1894. Whereas, the matters to be neglected in determining the amount of compensation are provided for under S.24 of the LAA, 1894. 44. After the 18th Constitutional amendment56, land acquisition has become a provincial subject which has led to the creation of diverging legislative regimes57. Each legislation provides for different parameters for compensation which creates disparity. In order to alleviate such disparity, other jurisdictions, such as India, have enacted the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, whereby, a uniform compensation mechanism exists for the entire State and the compensation afforded to the land owners, whose land is acquired under the exercise of Eminent Domain for public purpose, is significantly greater. It is desirable that one uniform compensation mechanism should also be adopted by the parliament of Pakistan by conducting a similar exercise to bring forth an identical, or more beneficial, legal regime to recompense land owners for the compulsory acquisition of their land. We also observe that the scheme of compensation provided under the Land Acquisition Act, 1894 remains a remnant of colonial times that should have been timely amended to cater to our evolving socio-economic circumstances. Therefore, such overhaul becomes necessary in light of the shortcomings of the current scheme of land acquisition with respect to compensation and matters incidental thereto. 56 See Paragraph 44 of this Judgment for more detail 57 Some of which are detailed in paragraph 65 of this judgment C.As N.1476 – 1485/18 etc. 26 g. APPLICATION OF DOCTRINE OF OCCUPIED FIELD, PITH AND SUBSTANCE, AND INCIDENTAL ECNROACHMENT ON THE FACTS 45. When two or more competing laws or provisions contained therein, are seemingly similar or overlapping, then legislative intent of the parliament may be discernible from examining the Preamble, legislative history, doctrine of pith and substance, incidental encroachment, and occupied field to adjudge their co-existence in their respective domain or for one to nudge out and claim dominance over the other. The superior courts have expounded such doctrines, amongst others, as interpretive techniques, which are used to adjudge the predominance and constitutionality of a statute or of any provision contained therein. This court has examined the circumstances warranting applicability of such doctrines to outcast LAA, 1894 and CDAO, 1960 or provisions in competition. In the case of Shama Textile v. Province of Punjab58 this court has set down the rule to apply the doctrine of occupied field, pith and substance, and incidental encroachment. The relevant portion is reproduced below: “The doctrine of occupied field is a concomitant of the larger doctrine of pith and substance, incidental encroachment. Under the doctrine of pith and substance, with all its concomitants, postulates for its applicability on a competition between Federal legislation and Provincial legislation and it would be erroneous to invoke the doctrine where there is no such competition, merely because a Provincial law conflicts with another law which has not been passed by the Federal Legislature but deals with a matter in the Federal List. Similar is the case where a Federal Statute provides that the provincial Government may extend the operation of a law to any part of the Province and the legislation is brought into operation by the Provincial Government, the law does not lose its Federal Character and does not become invalid when it comes into conflict with another Federal law.” (Underlined to add emphasis) 46. Thus, it could be seen that doctrine of occupied field, which is auxiliary to the larger doctrine of pith and substance, and incidental encroachment, may be invoked by the courts to determine the extent of 58 1999 SCMR 1477 at page 1495 C.As N.1476 – 1485/18 etc. 27 legitimacy only in cases where the competing statutes or any of the provisions contained therein are by different tiers of legislature. In the case at hand, both the LAA, 1894 and the CDAO, 1960 are the Federal Statutes and it is not a case of competition between the federal or provincial tier of the legislature. Therefore, it would be an exercise in futility to invoke the doctrine of pith and substance, incidental encroachment, or occupied field where there is no legislative competition between the federal and provincial tier of statutes. II. The Legislative Intent of the Parliament in CDAO, 1960 a. LEGISLATIVE COMPETENCE 47. Where legislative instruments in competition, one promulgated by the Federal and the other by the Provincial legislature, or any provisions contained therein, are pitched against each other, the test to determine the legislative supremacy or dominance is comparatively simple and provided by Article 141 and Article 142 of the Constitution, 1973 which clearly demarcates the legislative edges, competency and supremacy test. In case of conflict between Federal and Provincial enactments, privilege of overriding supremacy is conceded to the Parliament/Federal legislature under Article 143. Where one or more Provincial Assemblies, through resolution, authorizes the Parliament to pass law in respect of a residuary subject, in such event, power to repeal and amend such law is exclusively retained by such Provincial legislature(s)59. b. THE EXCLUSIVE DOMAIN OF THE FEDERATION FOR THE SUBJECT OF ‘LAND ACQUISITION’ OVER ISLAMABAD CAPITAL TERRITORY 48. The Federal Legislature exercises such jurisdiction in respect of matters enumerated in the Federal Legislative List (FLL). All other left over matters/subjects are secured by the Provincial Legislature in constitutional parlance referred to as residuary subjects. 59 Government of Sindh v Dr. Nadeem Rizvi 2020 SCMR 1 (para 16 ( v), para 20) C.As N.1476 – 1485/18 etc. 28 The Parliament (by 2/3rd majority of both the houses)60, through the Constitution (Eighteenth Amendment) Act X of 2010, negotiated and redefined the legislative territory of the Federal and Provincial Legislature. Pakistan has migrated from two lists to one in the Federal Legislative List (FLL), which reserves subjects/entries exclusively for the Parliament to legislate. Although the Concurrent List, which gave the Parliament and the Provincial legislature contemporaneous or overlapping jurisdiction, has been done away with, the current scheme envisages a minuscule overlapping concurrent legislative domain confined to three subjects/entries i.e. criminal law, criminal procedure and evidence61. 49. It could be seen that by virtue of successive constitutional instruments, as succeeded by Constitution 1973, the ‘legislative subject or entry’ of “land acquisition” was neither covered by the Federal Legislative List nor the Concurrent Legislative List. Even when the concurrent list was done away with under the Constitution (Eighteenth Amendment) Act X of 2010, it did not alter the status of the subject of ‘Land Acquisition’, which remained as a ‘residuary’ or ‘leftover subject,’ as it remained uncovered under the ‘Federal Legislative List’. Therefore, by the operation of Article 142(c), read with Article 268 of the Constitution of 1973, the Provincial Assembly alone is endowed with the legislative competence to pass new legislation, or alter, repeal, and amend the ‘existing laws’ that had fallen within its legislative domain or competence of the respective provincial legislature by virtue of such laws being a ‘residuary subject’. 60 See Article 238 & 239 61 Article 142(b) C.As N.1476 – 1485/18 etc. 29 50. The status of Islamabad Capital Territory (ICT), under Article 1(2) of the 1973 Constitution, is classified as a territory that is clearly distinguishable from the territory of the Provinces. The relevant extract of Article 1 (2) is been reproduced below for perusal. “1. The Republic and its territories.- (1) Pakistan shall be Federal Republic to be known as the Islamic Republic of Pakistan, hereinafter referred to as Pakistan. (2) The territories of Pakistan shall comprise:- a) the Provinces of Baluchistan, the Khyber Pakhtunkhwa, Punjab and Sindh; b) the Islamabad Capital Territory, hereinafter referred to as the Federal Capital; c) (c) the Federally Administered Tribal Areas; and d) such States and territories as are or may be included in Pakistan, whether by accession or otherwise.” 51. The Constitution of Pakistan, 1973 not only makes specific provision for the exclusive legislative domain in respect of “residuary subjects” (i.e. subjects/entries left out of Federal Legislative List) over the respective provincial territories of the provincial assembly by virtue of Article 142(c), but it also recognizes the exclusive domain of the Federal legislature over “residuary subjects” in respect of territories or areas ‘not included in any province’ by the operation of Article 142(d) which includes Islamabad Capital Territory. Given the nature of Islamabad Capital Territory under Article 1(2), only the Federal Legislature is empowered with the exclusive domain to legislate in areas not forming part of a territory of any province as enumerated in Article 142(d). It becomes evident that only the Federation itself has the exclusive domain to legislate on all matters that are, in their nature, ‘residuary subjects’, including ‘land acquisition’, with respect to ICT. C.As N.1476 – 1485/18 etc. 30 III. The Conflict between Special Law and General Law 52. The learned bench of the Islamabad High Court, in paragraph 21 to 24, of the impugned judgment, stressed on the principle of general and special law, earlier law and later law, doctrine of implied repeal, and the nature of LAA 1894, a general law and CDAO, 1960, a special law, held ‘that there is conflict between the two enactments and could not stand together; therefore special law which was enacted later would not only have precedence but abrogate the earlier contrary law62. As will be discussed in the succeeding paragraphs, the conclusion drawn that provisions of ‘land acquisition’ contained in the CDAO, 1960 abrogates provisions of land acquisition in the LAA, 1894 cannot be sustained. a. PROPERTY RIGHTS WITHIN THE CONSTITUTION OF PAKISTAN, 1973 53. Articles 4, 23, 24, 152, 172, 173 and 253 of the Constitution of Pakistan, 1973 deals with various aspects of property rights, interests and concomitant limitations. Article 4 guarantees that: ‘no action detrimental to life, liberty, body, reputation or ‘property’ of any person shall be taken except in accordance with law.’ Article 23 provided that: 'Every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest.‘ Sub Article (1) of Article 24 ibid further hold the out assurance: ‘that no person shall be deprived of his property save in accordance with law’ 62 Paragraph 24 of Impugned judgment C.As N.1476 – 1485/18 etc. 31 Sub Article (2) further reassures that: No property shall be compulsorily acquired or taken possession of with a caveat (a) save for a public purpose, and (b) save by the authority of law, which provides (c) for compensation therefore and either fixes the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given. The expression “save by authority of law” in this Article provides for acquisition in accordance with law, which in the present case is the Land Acquisition Act, 1894 as it is in conformity with all the attendant limitations. 54. Article 253(1) endows the Majlis-e-Shora (Parliament) to prescribe a maximum limit as to property, or any class thereof, which may be owned, held, or possessed by any person. Any law, which allows a person to own or possess beneficially an area of land greater than which, immediately before the commencing day63, he could have lawfully owned or possessed beneficially, was held to be void64. Clause (b) of sub-Article (1) of Article 253, gives legislative competence to the Parliament to legislate, empowering the Federal or Provincial Government, directly or through corporations controlled by any of such Government, to carry on any trade, business, industry, or service as may be specified in such laws either wholly, partially or to the exclusion complete or partial of other person or by corporation controlled by any such Government. 6314 August, 1973 per Article 265 (2) of the Constitution 64 Land Reform, Act 1972, and Hydrogenated Vegetable Oil Industries (Control and Development) Ordinance 1973 owes its legitimacy under Article 253 (1) of the Constitution C.As N.1476 – 1485/18 etc. 32 b. THE ABSENCE OF A ‘NON-OBSTANTE’ OR OVERRIDING CLAUSE IN CDAO, 1960 55. The observation of the learned bench in para 24 of the impugned judgment is that: “It is settled that in case of conflict, preference is to be given to the new law, and the implied repeal of earlier law could be inferred only when there was enactment of later law, which had the power to override the earlier law, and was totally in consonance with the earlier law and when there are two laws, the earlier and later law, could not stand together, therefore, later laws abrogate the earlier laws.” i. Distinguishing the Cases relied upon by the learned bench 56. The propositions of law appears to have been drawn from precedent law cited as The Lahore (Inland Revenue)65, Tanveer Husain,66 which though is correct, however, applying the same on the facts and circumstances of the present case to infer that the LAA, 1894 stands superseded by CDAO, 1960 is not a correct deduction. 57. In the case of Lahore (Inland Revenue) supra, rival provisions contained in the Income Tax Ordinance 1979 and the Income Tax Ordinance, 2001 were under consideration. In the case of Tanveer Husain (supra), the period of limitations to file the appeal contained in the rival statutes i.e Civil Servant Act, 1973 and similar provisions in Removal from Service (Special Powers) Ordinance 2000 were under question. The cases are quite distinguishable. 58. Learned Counsel for the Respondents has relied upon Syed Murshad Shah etc v. FIA67, Muhammad Mohsin Ghuman v. Government of Punjab68, and LG HQ Frontier Corp etc. v. Ghulam 65 2013 PTD 2125 66 PLD 2006 SC 249 67 2017 SCMR 1218 68 2013 SCMR 85 C.As N.1476 – 1485/18 etc. 33 Hussain69, to urge that when two competing laws are in field, then the later law prevails. Said cases were relied upon in paragraph 21 of the impugned judgment with approval. We have examined and note that the under lying principles in cited cases were missed by the learned bench. 59. In the first mentioned case of Syed Murshad Shah etc, the matter concerned a customer of a bank involved in financial impropriety. This Court resolved the conflict as to the primacy of law, stuck between Banking Companies Ordinance, 1962 read with Federal Investigation Agency Act, 1972, Banking Companies (Recovery of Finance) Ordinance 2001, Financial Institution (Recovery of Finance) Ordinance 2001 (FIO, 2001), and Offences in Respect of Banks (Special Courts) Ordinance, 1984. It was held that where there is conflict between competing laws, ultimately question of relativity between two or more of the statute on common subject matters and where the two conflicting law contain overriding clause, generally the legislation later in time will prevail. Such presumption was, however, held not to be automatic. A host of other factors including object, purpose and policy of both statutes and the legislature’s intention as expressed by the language employed therein to determine which of the two was to prevail. 60. In the second case of Mohsin Ghuman Surpra, the Police Order 2002 was pitched against the Punjab Civil Servant Recruitment (Relaxation of Upper Age Limit) Rules 1976. The general law as well as the special law contained a ‘non-obstante' clause. The Court opined that the special statute overtakes the general law even if the general law contained a non-obstante clause. The case is quite distinguishable as the CDAO, 1960, while special law, does not contain a non-obstante clause to override the provisions of LAA, 1894 for land acquisition. 69 2004 SCMR 1397 C.As N.1476 – 1485/18 etc. 34 61. It was noted in the case of LG HQ Frontier Corp etc. v. Ghulam Hussain, both the competing laws i.e. Frontier Corp Ordinance 1959 and Removal from Services (Special Power) Ordinance, 2000 were couched in negative terms or in such affirmative terms, which unequivocally involve negative ramifications, that proved fatal to the earlier enactment. In all the three cases noted above, ‘overriding’ and ‘non-obstante' clauses gave supremacy over both general as well as special law, which were earlier in time. None of the cases supports the case of the private Respondents. 62. Hence, the conclusion of the learned bench in para 23 of the impugned judgment cannot be sustained, as the CDAO, 1960 neither contains an ‘overriding’ nor a ‘non-obstante' clause that may nudge out LAA, 1894 from its applicability in ICT. Having examined both the enactments, we are also of the view that CDAO, 1960 is purpose specific law that caters to the requirement of ‘planning and development’ of the new capital of Pakistan and such kind of enactment provides a complete mechanism in itself, which is a self- contained enactment, having no dependency for the acquisition of land on the LAA, 1894, unlike similar statutes catering for planning and development of major and developing cities as discussed in succeeding paragraph 66. 63. No arguments strong enough have been put forth to show that the CDAO, 1960 could override the provisions of the LAA, 1894. In absence of overriding or superseding or ‘non-obstante' provision within the CDAO, 1960, we see no reason strong enough as to why the CDAO, 1960 should override the provisions of the LAA, 1894 as held by the learned Bench in the impugned judgment. In conclusion, as stated above, the legislations are merely overlapping and there appears to be no conflict between both the statutes. There is no apparent reason as to why these statutes cannot exist coextensively as each of them caters to a different object and purpose. C.As N.1476 – 1485/18 etc. 35 ii. Construing the words of the CDAO, 1960 in their natural, ordinary, or popular meaning 64. The provisions of CDAO, 1960, are to be considered in their natural, ordinary or popular meaning, not containing a non- obstante clause. The CDAO, 1960 also does not explicitly exclude the application of LAA, 1894 over ICT, as compared to other legislations of similar nature (as noted in succeeding paragraph 66). The literal rule further lends support that the CDAO, 1960 is not the only legislation to be used in ICT for acquisition of land, which can be invoked in furtherance of the main purpose of the legislation i.e for planning and development’ as held in the case of Murree Brewery Co Ltd. v. Pakistan through Secretary to Govt. of Pakistan, Works Division70. iii. The Legislature adds a ‘non-obstante’ clause where the intention is for the legislation to have an overriding effect: 65. One may instructively refer to the Punjab Development of Cities Act, 1976, which, by virtue of its Section 24, makes the Act, applicable notwithstanding provisions of LAA, 1894. In addition, the Punjab Acquisition of Land (Housing) Act, 1973, per Section 3, enables it’s provisions to apply notwithstanding anything contained to the contrary in LAA,1894 or any other law for the time being in force. Furthermore, Section 25 of the Lahore Development Authority Act, 1975 also contained a notwithstanding clause. Baluchistan Acquisition of Land (Housing and Development Scheme) Rural Areas Act, 1974, Hyderabad Development Authority Act, 1976 contained no provision overriding LAA, 1894 in either enactment. As per Section 49 of the NWFP Urban Planning Ordinance, 1978, provisions of the same would apply notwithstanding anything contained to the contrary in the LAA,1894 or any other law for the time being in force. Section 15 of the Baluchistan Costal Development Authority Act, 1998 states that where the Authority is of the opinion that any land needed for any scheme or other public purpose cannot be acquired under Section 14, such land may be 70 PLD 1972 SC 279 C.As N.1476 – 1485/18 etc. 36 acquired in accordance with LAA, 1894. Gwadar Development Authority Act, 2003, through Section 39, makes provisions of LAA, 1894 by explicit reference applicable. Lastly, New Murree Development Authority Act, 2004, through Section 7(c), has the power to acquire property, both moveable and immoveable, and Section 25 of the same confers an overriding effect over provisions of any other law, but surprisingly, unlike other statutes on the subject, the Act of 2004 does not give manner and procedure of acquisition of land. Cited statutes are amongst many on the subject, relatable to ‘city or region specific development’, some of the statute import, some adopt by reference, and some override applicability of not only the LAA, 1894, but any other laws too. During the pendency of the case, the Foundation has been transformed into the Authority the under Federal Government Employees Housing Act, 2020 which contains a non-obstante clause essentially overriding the CDAO, 1960, implication of such change and up gradation of legal status of foundation to that of the Authority will be dealt with separately. 66. As noted earlier, CDAO, 1960 is a purpose specific legislation “providing for making all arrangements for the planning and development of Islamabad within the frame work of a regional plan”. The CDAO, 1960, as already noted above, does not contain any exclusionary or overriding clause barring the applicability of LAA, 1894, meaning thereby that, while enacting any statue, some of the matters covered by the purpose specific statute of CDAO, 1960 may touch upon some of the aspects, which, in fact, are elaborately covered by other statutes and both the statute can coextensively exist and operate in their respective domain. The Respondents were not able to convincingly demonstrate that CDAO, 1960, under given set of circumstances, overrides the LAA, 1894 for ICT. However, the planning and development is still the domain of the CDA and it still maintains the authority to conduct such planning and development of any land that is acquired under the LAA, 1894 for public purpose. C.As N.1476 – 1485/18 etc. 37 IV. Enactment of Law to Qualify as an Exception within Article 24 of Constitution: 67. Indeed, it was rightly concluded by the learned Division Bench, (in para 29 of the Impugned Judgment) that for the purpose of acquisition of any property or depriving any person of a property, such exercise of authority need to be backed by law. The learned bench, in a truncated manner, relied upon exceptions carved out in terms of sub- article (3) of Article 24, where a Constitutional shield is provided to laws framed for the acquisition of different category of property i.e a) for preventing danger to life, property or public health b) property which has been acquired by, or come into the possession of, any person by any unfair means, or in any manner, contrary to law c) enemy property or evacuee property d) for limited period, either in the public interest or in order to secure the proper management of property or for the benefit of its owner e) (i) providing education and medical aid to all or any specified class of citizen (ii) housing and public facilities (iii) providing maintenance to those who, on account of unemployment, sickness, infirmity or old age, are unable to maintain themselves, f) any existing law or any law made in pursuance of Article 253. 68. The learned Division Bench of the Islamabad High Court, relying on sub-article (3) of Article 24, (wrongly quoted as Clause 3 of Article 4), concluded that no persons could be deprived of his property without any authority or backing of law, is indeed correct. To draw support, the learned bench relied upon a judgment in the case of Nazim F Haji, Chief Citizen Police Liaison Committee Karachi v. Commissioner Karachi etc.71 In the cited case, the action of the Government of Sindh, whereby private vehicles were being requisitioned without any compensation in favor of law enforcement agencies, such as the police, was eventually challenged in the court of law. When it was challenged, the Government of Sindh defended the action relying on Section 42 of 71 PLD 1993 Kar. 79 C.As N.1476 – 1485/18 etc. 38 the Code of Criminal Procedure 1898 which inter-alia obligates the public to assist the Magistrate and the Police for prevention or suppression of breach of law. The learned bench of the Sindh High Court rightly deprecated such practice of the Police and held that Section 42 Cr.P.C does not authorize the requisition of private vehicles and there is no law on the subject that complies with Article 24 of the Constitution, 1973 for the requisition of private Vehicle in public interest against compensation. Although, such law is enacted in the Indian part of Punjab72. We fail to understand how the learned bench has relied on the aforementioned case in the current circumstances, let alone how it advances the case of the Respondents. 69. The legislative history, Constitutional, as well as legislative protection, of the LAA, 1894, including its applicability on ICT have been thrashed out in detail in the above mentioned paragraphs. The legitimacy of the LAA, 1894 in the current legislative scheme has already been discussed and established. Hence, the LAA, 1894 is covered under the exception contained in Article 24 (2), which need no further elaboration. To assume that the land acquisition in the case at hand is without any legal backing is too naive an opinion, which cannot be sustained. 70. The learned bench concluded that the LAA, 1894 has no constitutional blessing within Art. 24 and assumed that is, in fact, the CDAO, 1960 that fits within the scheme of Article 24. As discussed in the preceding paragraphs, the CDAO, 1960 and the LAA, 1894 had each qualified under the tests provided in Article 8 and Article 227 of the Constitution. We have noted that all statutes, some of which are referred herein above in paragraph 65, that provide for the acquisition of any class of property, have provisions to discharge municipal function. Such discharge of municipal functions, along with executing a scheme for ‘planning and development’ in area of respective 72 Punjab Requisitioning and Acquisition of Movable Property, Act, 1978 C.As N.1476 – 1485/18 etc. 39 jurisdiction, can enable these statutes to qualify under the exceptions contained in sub-clause (ii) of clause (e) to Sub-Article (3) of Article 24 of the Constitution for the purposes of land acquisition. The same has been reproduced below: “(3)Nothing in this Article shall affect the validity of (e) any law providing for the acquisition of any class of property for the purpose of- (ii) providing housing and public facilities and services such as roads, water supply, sewerage, gas and electric power to all or any specified class of citizens” 71. While previously the CDAO, 1960, under S.15A, catered for municipal functions, they have since been sliced away pursuant to the mandate of Article 140A of the 1973 Constitution and such municipal functions are now conferred on the Authority established under Islamabad Local Government Act, 2015. Therefore, the possibility has now arisen where the CDAO, 1960 may no longer even qualify under the exception contained in sub-clause of (ii) of Clause (e) to Sub-Article (3) of Article 24 of the Constitution for the purposes of land acquisition. Since this was not an issue before us, we have refrained from attending to it. a. THE EXCEPTION UNDER ARTICLE 24(2) 72. Perhaps it would have been appropriate if the learned bench, prior to venturing into the exceptions contained in sub-article (3) of Article 24, had examined the exception contained in sub-article (2) of Article 24. The same has been reproduced below for convenience sake. “(2) --- Protection of Property Rights No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefore and either fixes the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given.” C.As N.1476 – 1485/18 etc. 40 73. The exception contained in sub-article (2) of Article 24 is relevant to determine the validity of actions taken the LAA, 1894. Once a declaration is issued under S.6 (3) of the LAA, 1894, it is conclusive evidence that the land is needed for either public purpose or for a company, unless it is shown to be in colorable exercise of jurisdiction as was in the case of Murree Brewery73. In fact, the validity of law under clause (e) (ii) of sub-Article (3) of Article 24 is now conferred on the FGEH Authority Act 2020 due to the municipal functions entrusted to it under S.3(4) of the Act. 74. Article 172 deals with the vesting of ownerless and other properties like mineral, oil and natural gas in the Provincial and Federal Government respectively, or jointly, as the case may be. Article 173(1), defines the limit of executive authority of the Federation and a Province, subject to any Act of appropriate legislation with regard to the grant, sale, disposition, or mortgage of any property; This Article also governs the purchase or acquisition of property either on behalf of the Federal Government or the Provincial Government, as the case may be, and the making of a contract. In terms of Sub-Article (2) of Article 173, ‘all property acquired for the purposes of the Federation or of a Province, as the case may be’ shall vest in the Federal Government or in the Provincial Government as the case may be. The learned bench erred in holding (see paragraph 34 and 35 of the impugned judgment) that the acquisition for public purpose, could only be undertaken in exercise of authority under Art. 173, read with CDAO, 1960, and not LAA, 1894 mandated under Art. 24. As noted, herein, objectives and purpose of the two articles are entirely different. 75. The objectives and purpose of the two articles are entirely different. Article 24(2) provides for the acquisition of privately owned property, for a public purpose, against compensation. Whereas, Article 173(2), as noted above, concerns where the acquisition of the property is “for the purposes of the Federation or of a Province”. The 73 PLD 1972 SC 249 C.As N.1476 – 1485/18 etc. 41 learned bench did not consider the correlation of sub-article (2) of Article 24 with S.6 of the LAA, 1894 that led to an erroneous conclusion. Resultantly, it becomes imperative to delve into the legislative origin of Article 24 and the principle it embodies to form a better understanding regarding the power of the State to acquire land under the umbrella of ‘public purpose’. V. Eminent Domain: 76. The power of ‘Eminent Domain‘ is a proprietary aspect of sovereignty and is inseparable from it.74 It is an inherent attribute of a sovereign State and the manifestation of the sovereign authority of ‘Eminent Domain’ can be traced to Article 24 of the Constitution of Pakistan, 1973. It vests within the State, or its delegated instrumentality, to expropriate private property for public use, and or for company against adequate, or reasonable, compensation payable to the owner of property75. 77. The doctrine of ‘Eminent domain’ is founded on two maxims which can be traced back to the work of Roman orator, writer, and statesman, Marcus Tullius Cicero's76 and ‘De Legibus’77. The first of these maxims is “salus populi est supreme Lex (i.e regard for the public welfare is the highest law) and the second is “necessitas publica major est quam private” (i.e public necessity is greater than private necessity)”.’ The term "eminent domain" was then coined from the legal treatise “De jure belli ac pacis” (On the Law of War and Peace), authored by the Dutch jurist Hugo Grotius in 1625, which used the term ‘Dominium Eminens’ (Latin for supreme ownership)78. 74 Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457 75 For an elaborate discussion, see American Jurisprudence, 2d Vol 26, pp 638-39 para1, and Sooraram Pratap Reddy & Ors. v. Deputy Collector, Ranga Reddy & Ors. (2008 (9) SCC 552), Para 47 76 Period of work ranging from 106 BCE- 43 BCE 77 Period of work is estimated between February 45 and November 44 - Encyclopedia Britannica 78 Nowak, John E.; Rotunda, Ronald D. (2004). Constitutional Law (Seventh ed.). St. Paul, MN: Thomson West. p. 263. ISBN 0-314-14452-8 C.As N.1476 – 1485/18 etc. 42 a. EMINENT DOMAIN ORIGIN IN THE US CONSTITUTION. 78. Tracing the constitutional history, the concept of Eminent Domain received first recognition and manifestation in the 5th Constitutional Amendment (1791) in the Constitution of United States, 1789, whereby it incorporated that ‘No person can be deprived of life liberty or property without due process of law’ and limits of the authority of the State from taking private property for public use without "just compensation". The Fifth US Constitutional amendment provided the basis of Eminent Domain in the United States. While originally Eminent Domain vested only within the Federal Government, the US Supreme Court, in the case of United States v. Jones79, approved that such powers could be legislatively delegated by the State to municipalities, government subdivisions, or even to private persons or corporations, when they are authorized to exercise the functions of public character80. The Power of Eminent Domain of a State and its delegated authority is now considered as one of the pivotal attribute of all modern Constitutions of the nation States. b. THE PRINCIPLE OF EMINENT DOMAIN IN SUBCONTINENT 79. The said principles have also been accepted and applied in India in the cases reported as Charanjit Lal Chowhury v Union of India and others (1950)81, and State of Bihar v. Kameshwar Singh82. The Indian Supreme Court examined the constitutionality of the provisions of LAA, 1894 pitched against the rights to property and applied the doctrine of Eminent Domain to rule in favor of the LAA, 1894. 79 109 U.S. 513 (1883) 80 See Chicago, B & Q Railroad Co v. Chicago 166 U.S 226 (1897) 81 1 SCR 869 82 AIR 1952 SC 252 = (1952)1 SCR 899 C.As N.1476 – 1485/18 etc. 43 80. The Constitution of Pakistan, 1973 is no exception to applying the principles of Eminent Domain. The concept of Eminent Domain can be attributed to Article 983 read with Article 24(1)84 of the Constitution of Pakistan, which are in pari matretia to Vth American Constitutional Amendment. As noted above, sub-Article (2) of Article 24 regulates exercise of sovereign authority or Eminent Domain of State over private property is subjected to three concomitant limitations. Firstly, that no person can be deprived of his property except in accordance with law, meaning thereby that, no property could be acquired through executive orders and actions. Secondly, a person could only be deprived of his property for public purpose. Thirdly, that acquisition of property of a person must be against compensation. Sub-Article (3) of Article 24 gives constitutional protection to various laws dealing with acquisition of different types of property for variety of purposes and objectives. 81. Several Land Acquisition legislations were considered in a large number of cases from the perspective of legislative domain and the right to property, as guaranteed under the constitution and Eminent Domain enjoyed by a State authority as discussed herein. Such legislation was also viewed through lens of Islamic Injunction85. In case reported as Hafiz Muhammad Ameen v. Islamic Republic of Pakistan and others86, a five member bench held: “Since Article 24 in its clause (2) provides that any law of compulsory acquisition will have to provide for compensation, clause (4) was added to provide protection to laws covered by clause (3)” They further held that the: “power of Court was taken away to declare invalid law for acquisition of any class of property for certain purposes….” 83 No person shall be deprived of his life or liberty save in accordance with law 84 No person shall be deprived of his property save in accordance with law 85 Article 227 of The Constitution of Pakistan, 1973 86 PLD 1981 FSC 23 at page 41 C.As N.1476 – 1485/18 etc. 44 82. Another manifestation of Eminent Domain, in addition to Art. 24, over a Province find its place in Article 152, which sanctions acquisition of land situated in a Province, at the direction, on behalf of, and at the expense of the Federal Government, for any purpose with respect to which the Parliament (Majlis-e-Shoora) has power to make law. Article 152 also provides for the transfer of land owned by a Provincial Government to the Federal Government by agreement. In case of disagreement between the two Governments, the dispute is to be resolved by the Arbitrator to be appointed by the Chief Justice of Pakistan87. 83. In essence, the principle of Eminent Domain provides for the acquisition of land by the State for a Public Purpose or for company in exchange for compensation. The State, exercising their authority under Eminent Domain, has rightfully acquired such property by issuing notification S.6 of the LAA, 1894, which is treated as “conclusive evidence that the land is needed for public purpose or for the company as the case may be “ 88 84. In order to ascertain the inherent powers of a State to exercise Eminent Domain, either itself or through its instrumentality/agent, the deduction of the nature of the Federal Government Employees Housing Foundation becomes necessary. The learned bench did not look into the nature of FGEHF, and assumed it to be entity under Section 2(e) of the LAA, 1894. The true nature of the FGEHF as either a corporate entity in common parlance or an instrumentality/agency of government would further clarify if the Foundation could exercise Eminent Domain as an instrumentality/agency of the government. 87 for further discussion one may see Iftikhar Hussain Shah v. Pakistan through Secretary, Ministry of Defence, Rawalpindi 1991 SCMR 2193 88 Section 6 (3) LAA, 1894 C.As N.1476 – 1485/18 etc. 45 VI. NATURE OF FGHEF: 85. On 2.10.2019, Mr. Faisal Hussain Naqvi, learned counsel for the private Respondents, in C.A 1476 to 1480 of 2018, brought to the notice of the Court that Federal Government Employees Housing Foundation has been established through an Act of Parliament, which has superseded the FGEHF. Such fact was taken note of to examine its implication. Later FGEHA Act, 2020 was brought to our notice. While the Foundation is now an ‘authority’ due to the Act, 2020, we will nonetheless examine the legal implications of the ‘Foundation’ in the given set of circumstances. a. DISTINGUISHING THE CASES RELIED UPON BY THE ISLAMABAD HIGH COURT 86. In the case Ghulshan Hussain etc. v Commissioner (Revenue), Islamabad, etc.89, the learned division bench treated Federal Government Employees Housing Foundation as an agency of the Government and relied on the cited case of Fauji Foundation v. Shamimur Rehman90 and cited a passage, which is relevant for the purpose of present controversy and, in fact, supports the Petitioner Foundation’s case “Once the public purpose is evident, the means for executing the project is for the law giver alone to determine as to how purpose may better be served as through an agency of private enterprise or through department of government, it is not open to court to give its own opinion on matter of which lawgiver is the judge.” 87. We fail to understand how case of Muhammad Ishaq etc. v. Govt. of Punjab etc.91, (para 29 of Impugned judgment) is helpful to the Respondents. In the referred cases, this court held that the Co- operative Society fall within the definition of Company as defined under Section 2 (e) of the LAA, 1894, and acquisition of land for the need of 89 2000 YLR 1711 90 PLD 1983 SC 456 91 2002 SCMR 1652 C.As N.1476 – 1485/18 etc. 46 company need not be for public purpose. The referred case is of no help to the Respondents, as the learned bench presumed that the Petitioner having been registered as Foundation under Section 42 of the Companies Ordinance, 1984 in the attire of a “company” is a company within the meaning of Section 3(e) of the LAA, 1894. While, in fact, the Foundation was indeed registered under S.42 of the Companies Ordinance, 1984, but not as a commercial or trading entity. Instead, it was registered as a service provider, a non-trading not for profit entity, and as an instrumentality of the State and, therefore, it’s comparison with a trading company for profit, is not justified. b. THE TEST FOR INSTRUMENTALITY/AGENCY LAID DOWN BY THE APEX 88. In order to determine the exact nature of the FGEHF, we will be relying on the jurisprudence of this Court where it has previously examined instrumentalities/agencies performing functions in connection with the affairs of the Federation or a province. It may be observed much before the status of FGEHF was examined by this court, the test to determine whether functions entrusted to an organization are the functions of a state, or otherwise, was laid down in the case of Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd,92 The same has been reproduced below: ‘What is meant by the phrase "performing functions in connection with the affairs of the Federation or a Province" It is clear that the reference is to governmental or state functions, involving, in one form or another, an element of exercise of public power. The functions may be the traditional police functions of the State, involving the maintenance of law and order and other regulatory activities; or they may comprise functions pertaining to economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Ordinarily, these functions would be performed by persons or agencies directly appointed, controlled and financed by the State, i.e., by the Federal Government or a Provincial Government. However, in recent years, there has been manifest a growing 92 PLD 1975 C.As N.1476 – 1485/18 etc. 47 tendency on the part of Government to create statutory corporations for undertaking many such functions, particularly in the industrial and commercial spheres, in the belief that free from the inhibiting effect of red tapism, these semi-autonomous bodies may prove snore effective, flexible and also profitable. Inevitably, Government retains effective control over their functioning by appointing the heads and other senior officers of these corporations, by regulating their composition and procedures by appropriate statutes, and by finding funds for financing their activities.’ ‘The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of the government; and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person, including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not.’ i. Exercise of Sovereign or Public Power by the Organization: 89. Given the aforementioned test, the Rules of Business 1973, elaborately lay down the rules and manner how a Federal and Provincial Government functions and regulates their business through the Federal or Provincial Secretariat. The occupational work of each secretariat is distributed amongst several Divisions. As Per Rule 4 under the Rules of Business, 1973 each of the Divisions of the Federal Government are further branched into several sub-divisions, flanked by ‘Attached Departments’, which is then further devolved into ‘working units’, or sections, and any such agencies or offices as the Prime Minister or chief Minister may determine. Each Secretariat carries on assigned business and activities, through various instrumentalities, agency of juridical, and administrative embodiment. 90. The List of Ministries and Divisions that the Federal Secretariat shall comprise of is provided in Schedule I93 of the Rules of Business, 1973. Entry #11 in Schedule I pertains to the ‘Ministry of Housing and Works’ with the attached division of ‘Housing and 93 Rule 3(1) of the Rules of Business, 1973 C.As N.1476 – 1485/18 etc. 48 Works’. The business of ‘Ministry of Housing and Works’ is as distributed is mentioned in Schedule II94 in the Rules of Business, 1973. Upon perusal, Serial #14, Entry No. 2 elaborates one of the businesses it transact is reproduced below ‘2. Provision of Government owned office accommodation and residential accommodation, policy for acquisition, requisitioning and hiring of office and residential accommodation for officers and staff of Federal Government.’ 91. The learned bench also relied on the Memorandum of Association of the FGEHF, in paragraph 13 of the impugned judgment, to illustrate the complete objective concept, wherein the primary object was provided in Clause III(a) reproduced hereunder: “III(a).To eradicate shelterlessness in the Federal Government employees and to make and assess as far as possible each of them have a house at the time of his retirement or earlier and his dependents in case of death before retirement, on such terms and the Board of Governors may determine. (b).To initiate, launch, sponsor and implement housing schemes for Federal Government employees on ownership basis in Islamabad, the provincial capital and other major cities of Pakistan.” 92. The purpose that was being carried out by the Federal Government Employees Housing Foundation was one that fell within the powers of the Division of the Ministry of Housing and Works as noted above. The fact that the Chairman of the Board of Governors for the Foundation was the Minister of Housing and Works also further lends to the fact that the Foundation exercised functions allocated to the Ministry of Housing and Works under the Rules of Business, 1973. 94 Rule 3(3) of the Rules of Business, 1973 C.As N.1476 – 1485/18 etc. 49 ii. The control of the organization vests in a substantial manner in the hands of the government: 93. The learned bench themselves acknowledged, in paragraph 12 of the impugned judgment, that the members of the Former Foundation were members of the executive belonging to various ministries, including the Ministry for Housing and Works. The relevant paragraph has been reproduced below: ‘The Federal Government Employees Housing Foundation while incorporating its Articles of Association referred the concept of membership which is only opened to the Federal Government employees, approved by the executive committee The management system referred in the said Articles is based upon the Executive Committee, comprising of Secretary (Housing and Works) as Chairman and Joint Secretary (Housing and Works) as a Vice Chairman, along with five members who are Financial Advisor (Ministry of Finance), Joint Secretary (Cabinet Division), D.G. Public Works Department, Deputy Secretary Admin (Works Division), and CSD (P&EC). The FGEHF has its Board of Governors comprising of Chairman, who is Minister for Housing and Works with four members including Secretary Interior, Secretary Establishment Division, Secretary Finance and Secretary Housing and Works. The Board and its Executive Committee are the decision maker in the FGEHF.’ 94. The aforementioned reproduction conclusively establishes that the control of the former foundation vested solely in the hands of the government as the Board and its Executive Committee were the decision makers in the FGEHF. Therefore, the control of the organization, in its entirety, vested within the hands of the government. iii. The bulk of the funds is provided by the State 95. Given that the foundation is conducting the affairs of the government, it is the State itself that allocates funds for financing the operation, salary of all its Board members, who are Civil Servants and for the staff and activities of the Foundation. C.As N.1476 – 1485/18 etc. 50 c. AFFIRMATION BY THE SUPREME COURT OF THE TEST LAID DOWN IN SALAHUDDIN V. FRONTIER SUGAR MILLS AND DISTILLERY LTD. 96. The exact nature of the FGEHF was examined by this Court in detail in the case reported as FGEHF v. Muhammad Akram95, wherein leave was granted inter alia to consider whether the allotment of plot claimed by a Civil Servant in the housing scheme of the FGHF fell within the terms and condition of service so as to attract the jurisdiction of Federal Service Tribunal. This court, in order to resolve the right of a civil servant to invoke appropriate jurisdiction, examined true character and status of the FGHF This Court examined the manner, intent and purpose of establishing FGEF in detail at page 1088 observed “This is correct that Housing Foundation was neither a statutory body nor is performing sovereign function rather by its character, it is functioning as an agency of ministry of Housing and Works, Government of Pakistan and is enjoying the status of an official body of the said ministry. Housing Foundation as per its declared objects and purpose, has undertaken the function of establishing the project for providing residential houses to the Federal Government Employees as a welfare institution without any financial gain. The Housing Foundation is not as such being financed from public exchequer but its affairs are being fully managed and controlled by machinery of the State and its functionaries are being paid from public exchequer. The Housing Foundation is operating the capital area and after acquiring land in the capital territory of Islamabad through land Acquisition Collector under the Land Acquisition Act, 1894, has prepared the housing Scheme for allotment of residential plots to Federal Government Employees.” In succeeding paragraph at page 1090 it was further reiterated The Housing Foundation thus by virtue of object and purpose has acquired the status of an official organization in the form of a company incorporated under the Companies Ordinance 1984 which is functioning under the direct control of Ministry of Housing and Works, Government of Pakistan, as its official wing and is recognized as an agency of the Federal Government”. 952002 PLC (CS) 1655= 2002 PLD SC 1079 C.As N.1476 – 1485/18 etc. 51 In the following paragraph at page 1091 it was further reaffirmed, “FGHF having acquired the role of agency of Federal Government was working for the benefit of employees of Federal Government including the employees of Institutions, Corporations, and Organizations controlled by the Federal Government and would stand on different footing to that of a private companies incorporated under the Companies Ordinance, 1984” 97. Even otherwise during pendency of instant appeals and Petitions FGEHF, has been transformed into a Statutory Authority through Federal Government Employees Housing Act, 2020, which Act has received the assent of the President on 14 January 2020 and the Act was published in the official Gazette on 15 January 2020. The 2020 Act has unequivocally cleared the ambiguities elaborated upon in this judgment. The relevant provisions have been analyzed in paragraphs 115 to 122. X. Public Purpose Justified for a particular segment of society 98. The Indian Supreme Court in the case of Ratilal Shankarabhai and others v. State of Gujrat and others96 held that ordinarily, the Government is the best authority to determine whether the purpose in question is a public purpose or not. Furthermore, the declaration made by it under Section 6 is conclusive evidence of the fact that the land in question is needed for a public purpose as in Smt. Somavanti v. State of Punjab97. The decision lays down that conclusiveness in S.6(3) of the LAA, 1894 must necessarily attach not merely to a 'need' but also to the question whether the purpose was a public purpose. 96 AIR 1970 SC 984 in Paragraph 7. 97 see Smt. Somavanti v. State of Punjab 1963 AIR SC 151 = 1963 SCR (3) 774 C.As N.1476 – 1485/18 etc. 52 99. Invariably, in all the cases so relied on by the learned bench, ‘public purpose’ for a segment of society was held to be a public purpose. The foundational case on the subject is Ministry of Works Government of Pakistan v Muhammad Ali98 wherein Cornelius, J., speaking for the majority of the bench, held that the acquisition of land for residence of Government servant is a public purpose. None of the case cited by the learned bench supports the case of the Respondents. The appropriate portion has been reproduced below: ‘The provision of residences is not by itself a matter falling outside the concept of a "public purpose" provided that it is part of a scheme for making general provision of that character. Secondly, the provision of residences for a particular class of persons, even though it may operate so as to provide a particular residence for a particular member of that class is also not excluded from the meaning of the expression "public purpose", nor does it make any difference whether the residences are for completely unprivileged persons like coolies, or for those enjoying the patronage of Government in the capacity of officers And the further conclusion which emerges from these decisions is that the provision of such residences may be included within the meaning of the expression, "public purpose" in the case of coolies because of the benefit to a whole class, and in the case of public servants for the reasons stated by their Lordships of the Judicial Committee, because of the public benefit which accrues from the fact of Government being assisted in maintaining the efficiency of its servants.’ 100. The dicta laid down by Cornelius, J. was recently upheld by a three-member bench of this court in the case of Younus Habib v. Imranur Rashid and others99 wherein it was held that the acquisition of land for a housing society is recognized as a public purpose. 101. The scope of ‘public purpose’ was further extended in the case titled Pakistan through the Secretary, Ministry of Defence v. Province of Punjab and Others100, wherein it was held that even the construction of shops in a market would be considered to be a public purpose even if profit is earned. The judgment serves as substantive evidence that ‘public purpose’ is justified even when specific classes of 98 PLD 1960 SC 60 992018 SCMR 705 100 PLD 1975 SC 37 C.As N.1476 – 1485/18 etc. 53 people, such as the shopkeepers in the cited case, are benefitted notwithstanding the fact that the Cantonment Board was earning a profit on such allocation. The relevant extract has been reproduced for convenience sake “Thus if in a market so constructed shops are let out on rent, or some fee is levied as a toll in the market place would not render the purpose merely the earning of profit; but it would still be a public purpose being discharged by the Cantonment Board in performance of the duties imposed upon it by Section 116 of the Cantonments Act. The levy of the fee or rent would merely be incidental and would neither deprive the property of its true character nor alter the user of the property from a public purpose to merely profit-making. I have no cavil with this enunciation and if a property is really used for a public purpose then the fact that a fee is levied for the user of such property would not render the user a non- public purpose, Thus, for instance, the provision of slaughter houses at which a fee is charged for slaughtering cattle will not render the slaughter-house a merely profit-making concern. It would still remain a premises used for a public purpose” 102. The concept of ‘public purpose’ was further enlarged to include welfare funds to serving personnel, ex-servicemen, and their families who also represented a specified class of people in the five- member judgment of this court titled Fauji Foundation and another v. Shamimur Rehman101 “The next question whether the retrieving of G.H.Q welfare funds and the charitable purposes such as those in which the appellant is engaged fall within the concept of "public purpose" or "public welfare". Just as the recovery of government dues cannot but be for public purpose as those not only belong to government but also to the entire people of the country, similarly retrieving of G. H. Q Welfare Funds which are also public funds and committed to the welfare of the serving personnel and ex-servicemen and their families, would also be for a public purpose on account of their purport and beneficial use by a large segment of population as against the private interest of an individual. All the enumerated items are without doubt purposes involving benefit to a large community of the population and in that view of the matter relatable to public purpose or public welfare. This view seems to gain support further from the use 101 PLD 1983 SC 457 C.As N.1476 – 1485/18 etc. 54 of expression "any advancement of any other object of general public utility" which necessarily connotes some beneficial advantage and service to the public” 103. The judgments used by the learned bench are authorities that essentially contradict their own argument. We will venture to show how a select few of these authorities are essentially contradictory of their own stance on how public purpose is not justified in this case. The case of Ghulshan Hussain and another v. Commissioner (Revenue) Islamabad102 provided a set of circumstances, which if fulfilled, would satisfy the threshold for ‘public purpose’ with respect to the functions discharged by the Federal Government Employees Housing Foundation (FGHEF). The learned bench has considered the cited case in isolation and has been unsuccessful in applying the principle enumerated. The relevant portions of the cited case are reproduced below: “18. The Foundation, in the light of the definition of "public interest", unless includes all the employees of the Federal Government inside or outside Islamabad and all those persons who are discharging functions in connection with the affairs of the Federation such as employees of the National Assembly, Election Commission of Pakistan, Supreme Court of Pakistan, the employees of High Court discharging function at Rawalpindi Bench of Lahore High Court, Federal Sharait Court and the autonomous Bodies, Corporations, Institutions, Government or semi-Government Organizations which are directly or indirectly discharging the functions under the control of the Federal Government, Doctors, Engineers, Lawyers and Educationist, who in any manner are connected with the Federal Government and Federation in public or private sectors are bonafidely running their affairs in Islamabad, such-like Journalists, the acquisition of land for a Housing Scheme exclusively for the benefit of a limited class of civil servants will not be the "public interest”. Similarly, the senior members of the Armed Forces who having completed their service are at the verge of their retirement or being in the retirement tenure or retired are discharging their function at their Headquarters in Islamabad and Rawalpindi are also entitled to be given representation in the Housing Scheme of Housing Foundation like the members of the superior judiciary. Thus, the Housing Foundation without extending the benefit of the scheme to the public and private sectors on the basis of a reasonable classification and ratio by including people from every walk of life in official or semi-official position cannot 102 2000 YLR 1711 C.As N.1476 – 1485/18 etc. 55 justifiably acquire land for the benefit of only the employees of Federal Government as such employees are not definable as a Community for "public purpose". 104. The learned bench then concluded that the ‘public purpose’ would be justified as long as the entire classes of employees in connection with the federation are benefitted by the housing scheme. It is further evident upon perusal of paragraph 24 of the cited case “24. The acquisition of land for a Housing Scheme introduced by the Housing Foundation for public utility in the form of an Agency like Capital Development Authority under the control of Federal Government and if such scheme is executed in the benefit of public-at-large and is not confined to a limited class, it will definitely advance the spirit of Constitution. Therefore, the acquisition of the land by the Housing Foundation for the benefit of all the above referred categories of persons can be for the "public purpose" and the same will not be in violation of Article 24 of the Constitution, which does not prevent establishment of Housing Colonies in the public interest.” 105. The learned bench then relies on the case of Muhammad Ishaq and Others v. Government of Punjab and others103 in Paragraph 29 of the impugned judgment to hold that ‘… any scheme prepared by the FGEHF for providing housing facility to its members has to be seen as a private interest for those members only and their status is of a society for the purposes of housing scheme… However, when they use the state machinery with their limited objective under the Companies law, their entire working has to be seen in the light of their objective only and the purpose for which the land was acquired was too limited to hold that the same would be used for public purpose” 106. The principle that land used for housing societies qualifies as a ‘public purpose’ was also affirmed by this Court in Younus Habib and others v. Imranur Rashid and others104. The dicta laid down by the cited judgment, read with Ghulshan Hussain and another v. Commissioner (Revenue) Islamabad (supra), denotes that the acquisition of land by the FGEHF was no longer for a specified class of 103 2002 SCMR 1652 104 2018 SCMR 705 C.As N.1476 – 1485/18 etc. 56 Federal Government employees but now included every employee in connection with the affairs of the Federation. Therefore, the opinion of the learned bench of the High Court cannot be maintained regarding ‘public purpose’ not being justified. 107. In Sooram Pratap Reddy and others v. District Collector, Ranga Reddy Dist and others105, the Indian Supreme Court stated that “public purpose” includes any purpose wherein even a fraction of the community may be interested or by which it may be benefited. As such Special Economic Zones (SEZs), mines, shopping malls, factories, dams, and other large-scale projects have been facilitated by expropriation of land under the Land Acquisition Act. XI. You cannot rob Paul to pay Peter: 108. The learned division bench of the Islamabad High Court equated the land acquisition exercise with taking property of one and giving it to other and drew strength from English saying ‘to rob Paul to pay Peter and relied upon some cases to mentioned in para 25 of the impugned judgment. We have gone through all the cases so cited. In fact all the cases so cited support the case of the Petitioner foundation, the case of Muhammad Akbar (supra), cited with approval in Dr. Nasim Javaid case (supra), does not approve of the concept relied on by the Islamabad High Court. The appropriate portion has been reproduced below ‘… taking land of one to be given to other. One cannot rob Peter to pay Paul, it may be Robin Hood Philosophy not part of law and is barred by Fundamental Law i.e Constitution of Pakistan, which only permits acquisition of land for Public Purpose’106 105 (2008)9 SCC 552 106 PLD 1976 Lah. 747 at Para 13 C.As N.1476 – 1485/18 etc. 57 XII. Regulatory Capture: 109. The learned Bench of the Islamabad High Court invoked the “Economic Theory of Regulation” propounded by Nobel Laureate of 1982, George J. Stigler107. The doctrine is recognized as “regulatory capture”, which proclaims that interest groups and other political participants use the regulatory and coercive powers of government to shape laws and regulations in a way that is beneficial to them. 110. In a case where the Punjab Local Government was rendered non-functional, by delaying elections of local bodies, and one of the mega projects was undertaken by Lahore Development Authority, the matter, when taken to Lahore High Court, the non- holding of election of local bodies was viewed critically and considered by three member Bench of the Lahore High Court to be regulatory capture of municipal functions in Imrana Tiwana v Province of Punjab108. 111. When the matter came for consideration up before this court in Lahore Development Authority v. Imrana Tiwana, it was held that “The doctrine applies where a statutory body setup to regulate a group is then manned by the persons from that group to defeat the regulations. It would not apply where the Regulated includes the government because inevitably appointments to such regulatory bodies have to be made by the Government. Government can defeat the legislative intent by not appointing persons to such bodies or by making appointment of such persons who will act only under its dictation, the power to appoint has to be exercised in a fair manner and the exercise of authority by appointee has to be transparent in public interest and non-arbitrary”109 The result is that an agency, charged with acting in the public interest, instead acts in ways that benefit the industry it is supposed to be regulating. 107 The Theory of Economic Regulation. The Bell Journal of Economics and Management Sciences, Vol. 2 No. 1 (Spring 1971), pp. 3 – 21. George J. Stigler. 108 PLD 2015 Lah. 522. 109 2015 SCMR 1735. Paragraph 85. C.As N.1476 – 1485/18 etc. 58 112. On the current facts of the case, the learned bench, in paragraph 31 of the impugned judgment, has definitively concluded that the CDA made a regulatory capture. The relevant extract has been reproduced below “In our humble view the entire working of the appellant/FGEHF and the CDA authorities in combination of other public officials made a regulatory capture which occurred when a regulatory agency, created to act in the public interest instead advance the commercial or special concern of interest group that dominated the industry or sector it was charged with regulating. Regulatory capture was a form of Government failure and it occurred when special interest, typically an industrial group, persuaded Government actors to exercise the coercive powers of the state in ways that were not in the public interest i.e. the interest of the industry group diverged from the public interest, the Government choose the former over the later.” 113. The CDA was established as a public service provider and not as a regulatory Authority. CDA is essentially responsible for making all arrangement for the planning and development of Islamabad, within the framework of regional development plan110. In addition, the municipal services earlier entrusted to the CDA in 1966 under Act 22 of 1966111 were withdrawn and entrusted to Islamabad Local Government112. The FGEHF is registered under Section 42 of the Companies Ordinance 1984; It is merely a non-trading, not for profit entity that is created for the betterment or service to the society generally or any segment of society particularly. It is under the Ministry of Housing and Works and performs one of its functions assigned to Housing and Works Division. It may be observed neither, the CDA nor, the FGEHF are the regulatory authority, none regulate any sector of business or, commercial activities of commercial bodies rather both are service providers. 110 Preamble, Section 11 to 21 of the CDAO, 1960. 111 S.15-A of the CDAO, 1960. 112 Islamabad Local Government Act, 2015. C.As N.1476 – 1485/18 etc. 59 114. The learned bench has also concluded, in paragraph 34 of the impugned judgment that the State functionaries have failed to perform their lawful duties on a required standard after due care and caution which amounts to regulatory capture. We cannot endorse the conclusion drawn by the learned bench. The present set of circumstances do not warrant the application of the doctrine of ‘regulatory capture’ as a state functionary, the CDA, is executing its statutory function, which does not include regulating any group of trade or business, let alone, being manned by a person from any of such commercial group or entity it is regulating. CDA and or FGEHF fail the test of regulatory capture laid down in the case of Imrana Tiwana. XIII The Federal Government Employees Housing Authority Act, 2020 a. EEFFECT OF ENACTMENT OF FEDERAL GOVERNMENT EMPLOYEES HOUSING AUTHORITY ACT, 2020, DURING PENDENCY OF INSTANT APPEALS AND PETITIONS 115. During hearing and pendency of instant appeals, the FGEHF, has been translated into an Authority through Federal Government Employees Housing Authority Ordinance on 12th July, 2019 which later graduated into FGEHA Act, 2020 as published in the official Gazette on 15 January 2020. In the case of Karan Singh and others v Bhagwan Singh113, Indian Supreme Court held that the subsequent act came into force during pendency of appeal, rights and remedies by operation of law to be governed under new law. In another case reported as Ramjilal & Ors. Etc. Vs. Ghisa Ram114, Indian Supreme Court, under Section 57 of the Indian Evidence Act115, took judicial notice of all the laws in force in the territory of India. 113 [1996] 7 SCC 559 114 1996 SCALE (2) 401 115 Corresponding Provision in Pakistan is Article 112 of Qanoon-e- Shahadat Order, 1984 C.As N.1476 – 1485/18 etc. 60 116. Thus in case in hand, this Court has taken judicial notice of the Federal Government Employees Housing Society Act, 2020 passed by the Parliament on 15th January, 2020 as brought to the notice of the court. None of the parties took any exception to the new legislative regime leading to land acquisition by the Authority for the purpose and object set out in the preamble of the Act, 2020. Accordingly, we took notice of the change in law as regard acquisition of land subject matter of present controversy. Examining the Act, 2020, it is noted that, it contains an elaborate procedure for enquiry, acquisition of land, payment and determination of compensation, vesting of property on issuance of notification and, right of appeal and all other incidental and ancillary matter relating to acquisition of land. 117. Under Section 3 thereof, the former Federal Government Employees Housing Foundation is now a body corporate having perpetual succession and is also a local authority in the “specified area”116. 118. In terms of Section 5(2)(e), the Board of the Authority is empowered “to impose and vary development charges, transfer fee, services charges, toll, tax or other charges in respect of any land or building within any scheme in the specified area”. 119. By virtue of Section 24(a): “all assets, rights, powers, authorities, and privileges, and all property, moveable and immoveable, bank balances, bank accounts, reserve funds, investments and all other interest and rights in or arising out of such property and all liabilities and obligations of whatever kind of the Foundation established before commencement of this Act, shall stand transferred to and vested in the Authority” 116 Defined under Section 2(n) to “means all lands owned, purchased, acquired or procured by or vested in or leased to the Foundation under any law before the commencement of this Act and such other land as may be purchased or procured or acquired or vested in or leased to the Authority in Islamabad Capital Territory or other parts of Pakistan;” C.As N.1476 – 1485/18 etc. 61 120. All acts and action of the FGEHF award of the contracts etc. are now also protected by virtue of deeming clause contained in Section 24(a) and further by virtue of Section 29 which reads as follows;- “All acts done or taken by the Foundation, before the Commencement of this Act, shall be deemed to have been validly done or have been taken under this Act to the extent they are consistent with the provisions of this Act” 121. The Act, 2020 contains ‘non-obstante’ clause117 which has an overriding effect. The same is reproduced below: “32. Relation of this Act with other laws– (1) The provisions of this Act shall have effect not in derogation of the Pakistan Penal Code 1860, Code of Criminal Procedure 1898 (Act V of 1898), Code of Civil Procedure 1908 (Act V of 1908), Qanun-e-Shahadat 1984 (P.O. 10 of 1984) and Land Acquisition Act, 1894 (1 of 1894) (2) Subject to subsection (1), the provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force. 122. The recent enactment of the Act, 2020 substantiates the fact that where the Parliament intend for the law to have overriding effect, the words of the statute, in their natural, ordinary, or popular sense, will clearly declare so. It is not the duty of the Court to either enlarge or curtail the scope of the legislation or the intention of the legislators, the latter of which was done so by the learned bench by concluding that the CDAO, 1960 had an overriding effect over the LAA, 1894 when no such intention of the legislature could be deciphered, either on the basis of legislative history of both the enactments as made applicable in ICT, and in absence of ‘non obstante’ clause in either of the statutes discussed elaborately. The Act, 2020 leaves no ambiguity regarding the status of the Authority under the current constitutional regime and simultaneously grants immunity to any prior actions undertaken by the now Authority, previous Foundation, due to the inclusion of the deeming clause as mentioned herein above. 117 S.32(2) of Federal Government Employees Housing Act, 2020 C.As N.1476 – 1485/18 etc. 62 XIII. Conclusion: 123. For the foregoing reasons, the first and second question regarding the jurisdiction of the CDA to acquire land to the exclusion of the Land Acquisition Act, 1894 has been answered in the negative in paragraph 62-63. The third question regarding the acquisition for a housing scheme constituting a valid public purpose has been answered in the affirmative in paragraph 98-107. The fourth question regarding the Acquisition under the LAA, 1894 becoming a State Largesse under Art. 173 of the Constitution have been answered in the negative as in paragraph 75. The fifth question regarding the constitutional petitions not being maintainable, was not argued by any of the parties, very fact that contentious matters has been argued and dilated by the High court as well attended to by this Court, we do not deem appropriate to delve into such controversy and leave it to be addressed in some appropriate proceedings. 124. In view of the forgoing discussion and determination of points noted in the leave granting order dated 6.12.2018, Civil Appeals No. 1476 to 1485 of 2018 stand allowed. Impugned consolidated judgments dated 04.7.2018 in Intra Court Appeals No. I.C.A.365/2017, I.C.A.366/2017, I.C.A.367/2017, I.C.A.368/2017 I.C.A.365/2017, I.C.A.365/2017, I.C.A.22/2018, I.C.A.23/2018 and I.C.A.24/2018 are set aside, consequently, consolidated judgments dated 23.10.2017 rendered in W.P. No. 2128/2015, W.P No. 3496/2015, and W.P No’s 308 to 310/2016 are also set aside, resultantly all the Writ Petitions noted herein stand dismissed. XIV. Crl.O.P 166 of 2018 125. Crl.O.P. P 166 of 2018 has been filed by the SCBAP. It arises out of Order dated 23.09.2014 passed in C.P. No. 38 of 2013, (SCBAP vs. Amer Ali Ahmed Commissioner Islamabad and other) whereby the SCBA sought implementation of the Directive No. 3059 and No. 3060 issued by the Prime Minister Secretariat, dated 13.11.2012, making a commitment for the allotment of land to the C.As N.1476 – 1485/18 etc. 63 members of the legal fraternity. The Petition proceeded and, ultimately, pursuant to issuance of Notification under Section 4 of the LAA, 1894 on 23.09.2014, it was disposed of as not pressed. From the record, it appears that the notification was later withdrawn, which led to the filing of Crl.O.P No. 12 of 2015. It appears that a fresh notification for the land acquisition was again issued on 29.04.2015. Consequently, the Crl.O.P No. 12 of 2015 was withdrawn on 30.04.2015. For inaction on the part of Petitioner Foundation and concerned authorities, several Criminal Miscellaneous Petitions were filed from time to time and it seems that Crl.O.P. No. 41 of 2017 came up before the Bench for non- compliance of orders made from time to time in various proceedings arising out of C.P. No. 38 of 2013. It is matter of record that during pendency of Cr.O.P 41 of 2017 a settlement was arrived at between the SCBAP, Collector Land Acquisition, and Director-General of the Foundation, wherein it was stipulated that the requisite notification under the LAA, 1894, having been issued, and objection, if any, were to be decided within the stipulated period followed by the award. The amount lying with the Appellant Foundation, submitted by the SCBAP, was to be credited to the Land Acquisition Collector, ICT. In view of such agreement reached between the parties, the Crl.O.P. 41 of 2017 stood dismissed on 10.08.2018. 126. Presently, we are confronted with Crl.O.P. 166 of 2018, which is a sequel of successive proceedings arising out of C.P. No. 38 of 2013, made by the SCBAP from time to time seeking implementation of various directives, assurances by the authorities concerned and lastly commitment made through agreement reached between the parties and recorded in the order dated 10.8.2018, and to draw contempt proceedings against all those responsible to make compliance of assurance held out in agreement as reproduced in order dated 10.8.2018. C.As N.1476 – 1485/18 etc. 64 127. Since a statement has been made by Mr Rizvi, learned ASC, for the SCBA, that the amount, as claimed by the FGEHF and the Collector Land Acquisition, has been deposited by the SCBAP, the learned Counsel for the Appellant and learned DAG assures that the agreement by and between the parties shall be honored. Mr. Rizvi, learned ASC, is satisfied with the assurance made on behalf of the authorities concerned. In this view of the matter Crl.O.P No. 166 of 2018 does not call for any further action, and is accordingly disposed of. XV. CMA No. 2083 of 2018 128. Nazar Hussain Chohan and Seven (7) others have filed CMA No. 2083 of 2018 whereby they seek to be added as a party to the proceedings and be allowed to assist this Court, further direction to the Islamabad to decide W.P No. 4270/16 and W.P 3594/18 in accordance with law and lastly, alternatively prayed that order dated 10.8.2018 passed in Cr.O.P 41/2017 be withdrawn and settlement dated 10.8.2018 be set-aside. Mr. Naeem Bukhari learned Sr. Counsel for the Petitioners in the noted application has assailed the proceedings and orders noted herein on the ground, inter-alia, that the land owners were not heard while disposing off C.P. No. 38 of 2013 and series of Cr.O.P’s arising there from and while taking on record settlement dated 10.8.2018 and treating the same as an order of the Court. He contends that the land owners are prejudiced by such directions of this Court under which their land has been acquired. 129. Mr. Rasheed Rizvi, learned ASC for the Petitioner/SCBAP, and so also Mr. Mansoor Ahmed, learned Sr. ASC, for the Foundation, contends that originally C.P. No. 38 of 2013 was disposed off on assurance of the authority concerned that the directives of the Prime Minister noted above would be complied with and later on a settlement was arrived at between the parties, which, do not speak of any particular land. According both the learned counsels, remedy against any acquisition of land, if any of the Petitioners lies elsewhere and not C.As N.1476 – 1485/18 etc. 65 in collateral proceedings. It was further argued that in the garb of listed application Petitioners cannot be allowed to seek review of the order dated 10.8.2018 as no fee for seeking review has been filed as required under the Supreme Court Rules, 1980, even otherwise, review is barred by time. On such grounds the application is liable to be dismissed. 130. Having heard the argument of all the contesting parties and perused the record. Contention of Mr. Rashid Rizvi, and Mr. Mansoor Ahmed learned Sr.ASC, is correct that there is no order of this Court whereby any direction to acquire any particular land was issued. The SCBAP has sought compliance and implementation of the directive of the then Prime Minister of Pakistan, which was complied with, and it was up to the authority concerned to make compliance with the directive of the Prime Minister in the manner it may deem expedient. It may further be observed that whenever any property is acquired, in exercise of authority conferred, and Notifications under S.4, S.6, and S.17 of the LAA, 1894 are issued, the parties interested and aggrieved have a right to object to such acquisition and/or challenge the award and determination and apportionment of compensation. We are informed that numerous land owners have already invoked the remedy against such acquisition. In this view of matter we are not persuaded by the contention of Mr. Naeem Bokhari, learned ASC that any directions were issued for acquisition of any particular land. It is the sole prerogative of the authorities to acquire land and the person so interested and aggrieved by such acquisition may avail of the remedy as provided under the relevant acquisition proceedings/laws. As regard his challenge to the applicability of CDAO, 1960 and inapplicability of LAA, 1894 in Islamabad, have been attended elaborately in preceding paragraphs need no further elaboration. Therefore, CMA No. 2083 of 2018 does not merit any consideration and is accordingly dismissed. C.As N.1476 – 1485/18 etc. 66 131. Since a statement has been made by Mr. Rizvi learned ASC for the SCBA, that amount as claimed by the FGEHF and the Collector Land Acquisition, has already been deposited by the SCBAP, and the learned Counsel for the appellant and the DAG, assures that the agreement by and between the parties shall be honored Mr. Rizvi, learned ASC, is satisfied. In this view of the matter Crl.O.P No. 166 of 2018 does not call for any further action, stands disposed of. XVI. Writs Called: 132. While hearing the subject Civil Appeals, as requested by Mr. Naeem Bukhari, learned Sr.ASC vide Order dated 27.12.2018, W.P No. 4270/2015, 4723/2016 and 3594/2018 pending in Islamabad High Court were called for consideration and disposal. We have noted that under Article 186A of the Constitution, 1973, this Court “may, if it considers it expedient to do, in the interest of justice, to transfer any case, appeal or other proceedings pending before any High Court to any other High Court”. 133. We have noted that unlike Indian Constitution118, Article 186A of the Constitution, 1973 does not confer any jurisdiction in this Court to, call any case, appeal or other proceedings pending before any High Court for the purposes of hearing and deciding the same itself, though such record and proceedings may be call for perusal and examination. Though, Mr. Naeem Bukhari, learned senior ASC, prayed for and consented to such course. It is a settled position in law that jurisdiction on court cannot be conferred even by consent; unless it is 118 Article 139A Constitution of India Transfer of certain cases “Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts and the Supreme Court is satisfied on its own motion or an application made by the Attorney General of India or by a party to any such case that such questions are substantial questions of general importance, the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself. Provided that the Supreme Court may, after determining the said questions of law return any case so withdrawn together with a copy of its judgment on such questions to the High Court from which the case has been withdrawn, and the High Court shall on receipt thereof, proceed to dispose of the case in conformity with such judgment” C.As N.1476 – 1485/18 etc. 67 so conferred by or under Constitution and or law119. We, therefore, deem it proper to return all the three Writ Petitions to the Islamabad High Court, which shall be deemed to be pending. 134. Lastly, we also appreciate the research carried out by Mr. Ahmad Hassan, Law Clerk and acknowledge his assistance rendered in the completion of this case. Judge Judge Judge Judge Islamabad Announced in Open Court on 8th October, 2020 Judge Approved for Reporting 119 Article 175 (2) of the Constitution 1973 C.A. Nos. 1476 to 1485 of 2018, etc. Qazi Faez Isa, J. This case is about the compulsory acquisition of thousands of kanals1 of land (‘the Land’) in the area of the Islamabad Capital Territory (‘Islamabad’). The Land was acquired by the Federal Government Employees Housing Foundation (‘the Foundation’)2 in terms of the Land Acquisition Act, 18943 (‘the Land Acquisition Act’). After the acquisition of the Land, the Foundation submitted its layout plans to the Capital Development Authority4 (‘CDA’) which were approved by the CDA Board5. The Land (less the area consumed in roads, utilities, etcetera) was delineated and earmarked into residential plots for allotment to government servants and advocates of the Supreme Court (‘the allottees’). The acquisition cost of the Land and its development cost is borne by the allottees; no amount is spent from the public exchequer by the Foundation or CDA. 2. Land Acquisition Act: The Land Collector within whose jurisdiction the Land is situated directed the Foundation to deposit the tentative cost of the Land and it was so deposited. Thereafter, the Collector issued the requisite notices which were published in the official gazette; the ‘Preliminary Notification’ dated 20 May 2015 followed by the ‘Declaration that land is required for a public purpose’ notification dated 4 December 2015, respectively under sections 4 and 6 of the Land Acquisition Act. The Collector made and issued awards under section 12 of the Land Acquisition Act, respectively Award dated 15 November 2016 and Award dated 15 June 2017. The said Awards determined the amount payable to the owners of the Land, that is, the market price of the Land, the additional compensation of fifteen per cent6 on account of the compulsory acquisition and six per cent 1 One kanal of land is equal to 605 yards or 505 meters. 2 Incorporated as an ‘association not for profit’ under section 42 of the Companies Ordinance, 1984 and in the Companies Ordinance, 2016, which used to be section 26 of the earlier Companies Act, 1913 and now is section of 42 the Companies Act, 2017. The Foundation was converted into a statutory organization by the Federal Government Employees Housing Authority Act, 2020, Act No. IV of 2020, enacted on 15 January 2020, published in Gazette of Pakistan, Extraordinary, Part I, on 15 January 2020. 3 Land Acquisition Act, 1894, Act No. I of 1894. 4 Set up under section 4 of the Capital Development Authority Ordinance, 1960, Ordinance No. XXIII of 1960, published in Gazette of Pakistan, Extraordinary, 27 June 1960 (PLD 1960 Central Statutes 375). 5 On 6 July 2017. 6 Section 23(2) of the Land Acquisition Act, 1894. C.A. Nos. 1476 to 1485 of 2018, etc. 2 annual interest7. An award made by the Collector is subject to challenge before a referee judge8 and then on appeal before the High Court9. 3. Impugned Judgments: Some of the land owners challenged the acquisition proceedings by invoking the Islamabad High Court’s constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan (‘the Constitution’). The challenge was made on a number of grounds10. It was alleged that the acquisition of the Land was not for a ‘public purpose’ and since the Land was situated in Islamabad its acquisition could only take place under the Capital Development Authority Ordinance, 196011 (‘the CDA Ordinance’). The learned Chief Justice of the Islamabad High Court vide judgment dated 23 October 2017 allowed the petitions because, in his opinion, the said acquisition was not for a public purpose and because CDA, under the CDA Ordinance, had exclusive jurisdiction to acquire the Land as it was situated in Islamabad. The Foundation and some of the allottees challenged the judgement of the learned Single Judge by filing Intra Court Appeals12 (‘ICAs’) before a Division Bench of the Islamabad High Court but their appeals were dismissed by judgment dated 25 September 2018. In the ICAs, the findings of the learned Single Judge regarding public purpose and CDA’s exclusive jurisdiction were upheld and it was further held that the Land Acquisition Act was not applicable. 4. The Foundation and some of the allottees filed petitions for leave to appeal13 before this Court and leave was granted on 6 December 201814. The learned Mushir Alam, J, has mentioned the facts, laws and precedents in considerable detail. I am in respectful agreement with his lordship’s conclusions. However, I have dilated upon certain relevant and necessary matters in this additional note. 5. Mr. Mansoor Ahmed, the learned counsel representing the Foundation, submitted that Article 24(2) permits compulsory acquisition of private 7 Section 34 of the Land Acquisition Act, 1894. 8 Section 18 of the Land Acquisition Act, 1894. 9 Section 54 of the Land Acquisition Act, 1894. 10 Writ Petition Nos. 308, 309 and 310 of 2016 and 2128 and 3496 of 2015. 11 Ordinance No. XXIII of 1960, published in Gazette of Pakistan, Extraordinary, 27 June 1960 (PLD 1960 Central Statutes 375). 12 ICA Nos. 364 to 368 of 2017 and 22 to 24 of 2018. 13 Civil Petition for Leave to Appeal Nos. 4449 to 4453, 4468, 4469 and 4482 to 4484 of 2018. 14 The leave granting order is reproduced in paragraph 22 of Mushir Alam, J’s judgment. C.A. Nos. 1476 to 1485 of 2018, etc. 3 property provided it is for a public purpose, done under the authority of law and a mechanism for determining compensation is provided, and that these three conditions were met; the acquisition was for a public purpose; was made under the Land Acquisition Act and, therefore, was made pursuant to the authority of law; and, the compensation payable to the landowners was determined by the Collector by applying the stipulated mechanism in terms of the Land Acquisition Act. The learned counsel submitted that the CDA Ordinance was applicable only in respect of land situated in Islamabad and was required for the use or purpose of the CDA. And, in this case the Land was not acquired by CDA, nor could it have been, since it was not required by CDA and/or for the use or purpose of CDA. The learned Deputy Attorney General representing the Federation and Senior Counsel Sardar Muhammad Aslam representing CDA, who sadly passed away after the judgement was reserved, had supported the appellants and adopted the submissions of the learned Mr. Mansoor Ahmed. On the other hand, Messrs Naeem Bukhari and Feisal Hussain Naqvi relied on the impugned judgments and reiterated the submissions made before the High Court and the reasons which prevailed with the learned Judges of the High Court. 6. Acquisition of Private Property for ‘Public Purpose’: Article 24(2) of the Constitution permits the compulsory acquisition of land provided it is for ‘public purpose’15 and that the acquisition is pursuant to, ‘the authority of law which provides for compensation therefor and either fixes the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given’16. I am in respectful agreement with the learned Mushir Alam, J17 that the Constitution permits compulsory acquisition if three conditions are met; firstly, the acquisition must be for public purpose; secondly, the land must be acquired pursuant to some law; and, thirdly, such law must provide for the determination of compensation and its disbursement. The Land in these cases was acquired pursuant to the Land Acquisition Act, a law which provides a detailed mechanism for the determination and payment of compensation, hence, the stipulated second and third conditions are met. The first condition - whether the Land was acquired for public purpose – remains to be considered. Public purpose is not specifically defined in the Constitution 15 Article 24 (2) of the Constitution of the Islamic Republic of Pakistan. 16 Article 24 (2) of the Constitution of the Islamic Republic of Pakistan. 17 Paragraph 80 of his lordship’s judgment. C.A. Nos. 1476 to 1485 of 2018, etc. 4 but it may be gathered from Article 24(3)(e). Article 24(3) commences by stating that, ‘Nothing in this Article shall affect the validity of’ compulsory acquisition and then lists six categories from (a) to (f). Clause (ii) of the fifth category (e), reproduced hereinbelow, is relevant and applicable: (3) Nothing in this Article shall affect the validity of- (e) any law providing for the acquisition of any class of property for the purpose of- (ii) providing housing and public facilities and services such as roads, water supply, sewerage, gas and electric power to all or any specified class of citizens; (emphasis added) Providing housing is specifically mentioned in Article 24(3)(e)(ii). Therefore, land which is compulsorily acquired for providing housing is for a public purpose and government/civil servants and lawyers, are a specified class of citizens. 7. Housing is a Public Purpose: The learned Judges of the High Court did not consider the scope of Article 24(2) of the Constitution. They also overlooked Article 24(3)(e)(ii) of the Constitution which stipulates that providing housing is a public purpose. The following precedents have categorically determined that housing is a public purpose. The term public purpose in the context of land acquisition has been interpreted in a number of decisions. The impugned judgments mention that these precedents were cited, but they were not considered. In the case of Pakistan v Muhammad Ali18, this Court held that: It will be sufficient for me to refer firstly to the Land Acquisition Act, 1894, which employs the expression “public purpose” in a very wide sense, and restrains the powers of the Government to acquire private property compulsorily. The Act does not define the expression “public purpose” exhaustively… It is obvious that the omission to define “public purpose” exhaustively is intentional, for it is impossible to place any limit upon the purposes which, in the light of the exercise of governmental power over large territories and populations, in respect of the multifarious activities which go into the establishment and operation of a thorough system of administration, would fall within the meaning.19 18 PLD 1960 Supreme Court 60. 19 Ibid, Cornelius, J, page 67H. C.A. Nos. 1476 to 1485 of 2018, etc. 5 This Court went on to hold that providing housing was a public purpose: [P]rovision of residences is not by itself a matter falling outside the concept of a “public purpose” provided that it is part of a scheme for making general provision of that character. Secondly, the provision of residences for a particular class of persons, even though it may operate so as to provide a particular residence for a particular member of that class is also not excluded from the meaning of the expression “public purpose”, nor does it make any difference whether the residences are for completely unprivileged persons like coolies, or for those enjoying patronage of Government in capacity of officers.20 Recently in the case of Yunus Habib v Imranur Rashid21 it was held that, ‘[T]he acquisition of land for a housing society is recognized as a public purpose’22. In Zafeer Gul v NWFP Province23 a Division Bench24 of the Peshawar High Court determined that, ‘land acquired by WAPDA Coopreative Housing Society for construction of residential colony would fall under the definition of “public purpose”’25 by relying on the decisions in Pakistan v Muhammad Ali (mentioned above) and on a number of Indian authorities26. In the case of Ch. Nazir Ahmad v Province of Punjab27, it was held, that, Article 24(3)(e)(ii) ‘of the Constitution makes it clear and obvious that the individual can be deprived of his property for the purposes of providing housing to a specified class of citizens and any law or act in this behalf will not offend against the fundamental right granted under Article 24’28. In Suo Motu Case No. 13 of 2019,29 this Court held that the Fundamental Right to life30 includes shelter31. Therefore, the Land, which was acquired to provide housing was acquisition for a public purpose. Reference may also be made to the Principles of Policy and the Objectives Resolution. 20 Ibid, Cornelius, J, page 69. 21 2018 SCMR 705. 22 Ibid, Saqib Nisar, J, page 724F. 23 2001 CLC 1853. 24 Comprising of Mian Shakirullah Jan (as he then was) and Talat Qayyum Qureshi, JJ. 25 Ibid, 1858C. 26 Including, R. L. Arora v State of Uttar Pradesh (AIR 1962 SC 764), Anand Kumar v State of Madhya Pradesh (AIR 1963 Madhya Pradesh 256), Veeraraghavachariar v Secretary of State for India (AIR 1925 Madras 837). 27 2007 CLC 107. 28 Ibid, Shaikh Azmat Saeed, J, page 120. 29 PLD 2011 Supreme Court 619 30 Article 9 of the Constitution of the Islamic Republic of Pakistan. 31 PLD 2011 Supreme Court 619, 646. C.A. Nos. 1476 to 1485 of 2018, etc. 6 8. Principles of Policy: The Principles of Policy32 enumerate the aspirations of the nation33. Securing the well-being of the people, raising their standard of living and providing housing are amongst the nation’s declared objectives. Article 38(a) and (d) of the Principles of Policy respectively stipulate: 38. The State shall- (a) secure the well-being of the people, irrespective of sex, caste, creed or race, by raising their standard of living, by preventing the concentration of wealth and means of production and distribution in the hands of a few to the detriment of general interest and by ensuring equitable adjustment of rights between employers and employees, and landlords and tenants; (emphasis added) (d) provide basic necessities of life, such as food, clothing, housing, education and medical relief, for all such citizens, irrespective of sex, caste, creed or race, as are permanently or temporarily unable to earn their livelihood on account of infirmity, sickness or unemployment; (emphasis added) To provide housing is a basic necessity of life, it also ‘secure[s] the well- being of the people’ and raises ‘their standard of living’; these principles reiterate that providing housing is a public purpose. ‘It is the responsibility of each organ and authority of the State, and of each person performing functions on behalf of an organ or an authority of the State, to act in accordance with those Principles’.34 The President and Governors are required to prepare and lay respectively before Parliament and the Provincial Assemblies reports on ‘the observance and implementation of the Principle of Policy’35. And, discussion on these reports has to take place in Parliament and the Provincial Assemblies. The requirement of preparing such reports and submitting them for discussion amongst the elected representatives of the people suggests that these reports constitute a performance audit of the Federal and Provincial Governments. 9. Objectives Resolution: Reference may also be made to the preamble of the Constitution which reproduces the Objectives Resolution36 and which 32 Chapter 2, Constitution of the Islamic Republic of Pakistan. 33 Ibid, Article 31 to 40. 34 Ibid, Article 29(3). 35 Ibid. 36 With slight changes. C.A. Nos. 1476 to 1485 of 2018, etc. 7 is a ‘substantive part of the Constitution and shall have effect accordingly’37. The Objectives Resolution calls for the provision of ‘social justice, as enunciated by Islam’ and guarantees ‘social, economic and political justice’. To acquire land in order to provide it to those in need of housing, after compensating the owners, does not detract from the objective of social justice as enunciated in Islam, and it constitutes social justice as understood in common parlance. 10. Significance of Principles of Policy and the Objectives Resolution: The Principles of Policy and the Objectives Resolution reflect the aspirations of the people and are guiding lights for the nation. In Benazir Bhutto v Federation of Pakistan38, which was decided by an eleven-member Bench, the Principles of Policy were said to, ‘occupy a place of pride in the scheme of the Constitution’ and categorized as ‘the conscience of the Constitution, as they constitute the main thrust of the commitments to socio-economic justice.’39 A similar sentiment was expressed in Employees of the Pakistan Law Commission v Ministry of Works40, describing them and the Objectives Resolution as inspirational provisions which ‘invigorate the entire Constitution’41 and achieve ‘democracy, tolerance, equality and social justice’42. More recently in Lahore Development Authority v Imrana Tiwana43 it was said that the Objectives Resolution and the Principles of Policy, ‘can be used to understand and interpret the chapter on Fundamental Rights in its proper context’44. 11. Incorrect Premise: The learned Single Judge had premised his findings on a number of misconceptions which were: ‘the land is being acquired for the distribution of State largess’45 [sic], the Land ‘vests in the Government’46, ‘loss’ would be ‘suffered by the people of Pakistan’47 and it constitutes ‘plunder’48. The Land, which was acquired and which was to be distributed 37 Article 2A of the Constitution of the Islamic Republic of Pakistan, which instead of mentioning the ‘Preamble’ of the Constitution referred to ‘the Objectives Resolution reproduced in the Annex’. 38 PLD 1988 Supreme Court 416. 39 Ibid, p. 489 per Muhammad Haleem, CJ. 40 1994 SCMR 1548. 41 Ibid, p. 1552. 42 Ibid. 43 2015 SCMR 1739. 44 Ibid, paragraph 32D. 45 Judgment dated 23 October 2017, paragraph 29. 46 Ibid, paragraph 49. 47 Ibid, paragraph 47. 48 Ibid, paragraph 49. C.A. Nos. 1476 to 1485 of 2018, etc. 8 amongst the allottees was not State or public land, therefore, the people of Pakistan did not suffer a loss as a consequence of the acquisition. The Land was privately owned and was acquired from its owners who were to be compensated in accordance with the law; to categorize such acquisition as plunder was unjustified. The two learned Judges of the High Court hearing the ICAs did not correct these misconceptions. 12. CDA Ordinance or the Land Acquisition Act: The impugned judgement of the learned Single Judge alludes to, and the learned Judges of the Division Bench held that, the applicable law in respect of the acquisition of the Land was the CDA Ordinance because the Land was situated in Islamabad. They also reasoned that since the CDA Ordinance is a special law applicable to Islamabad, therefore, the CDA Ordinance, and not the Land Acquisition Act, applies. The learned Mr. Mansoor Ahmed referred to a number of earlier land acquisitions49 undertaken by the Foundation in Islamabad all of which were under the Land Acquisition Act. He also referred to section 5 read with the Fourth Schedule of the Federal Laws (Revision and Declaration) Ordinance, 198150 which had amended the Land Acquisition Act in its ‘application to the Islamabad Capital Territory’ and contended that, despite the promulgation of the CDA Ordinance in 1960, the Legislature had specifically accepted, in 1981, that the Land Acquisition Act was still applicable to the Islamabad Capital Territory. The learned Judges of the High Court also did not consider this. Significantly, the CDA Ordinance does not contain an overriding or non-obstante clause nor vests exclusive jurisdiction in CDA with regard to land acquisition in Islamabad. 13. Compulsory Acquisition by CDA: Section 25 of the CDA Ordinance enables CDA to compulsorily acquire land, but this power is, ‘Subject to the other provisions of this Ordinance, the rules made thereunder’ and land by CDA can only be acquired ‘for the purposes of this Ordinance’. Sections 11 to 15 of the CDA Ordinance mention the activities that CDA may undertake in the Specified Areas51. Land can be compulsorily acquired by CDA when 49 (1) 6,330 kanals in 1999 in Sector G-13; (2) 831 kanals in 2005 in Sector G-14/1, 2, 3 and (3) 831 kanals in 2009 in Sector G-15/3. 50 Ordinance XXVII of 1981, Gazette of Pakistan, Extraordinary, Part I, 8 July 1981 (PLD 1982 Central Statutes 10, 11 and 113). 51 Defined in section 2(p) of the Capital Development Authority Ordinance, 1960, which is such areas as may from time to time be, ‘included therein by the Federal government notification in the official gazette’. C.A. Nos. 1476 to 1485 of 2018, etc. 9 it is required by CDA for its own use and/or purposes. In the case of Murree Brewery Co. Ltd. v Pakistan52 (‘the Murree Brewery case’) ‘buildings standing on about 16 acres of land’ were sought to be compulsorily acquired by CDA under the CDA Ordinance for the, ‘Provision of Office Accommodation for the President’s Secretariat’. This Court, after examining in detail the provisions of the CDA Ordinance and the power of CDA to compulsorily acquire land thereunder, held, that CDA did not have, ‘unlimited and undefined power to acquire all land within the Specified Areas. Any acquisition within these areas must have a reasonable reference to the purpose of the Ordinance, and must be carried out strictly in accordance with its provisions’53. The Murree Brewery case which involved compulsory acquisition under the CDA Ordinance rather than under the Land Acquisition Act, held that the land situated in Islamabad which CDA sought to acquire it could not do so. The learned Single Judge noted that the learned counsel representing the Foundation relied on the Murree Brewery case54 but his lordship neither applied nor distinguished it. The learned Judges hearing the ICAs also referred to the Murree Brewery case and quoted therefrom55 without realizing that it had held that when land was required for the use and/or purpose of CDA it could be compulsorily acquired under the CDA Ordinance. Since the Land in question was not required for the use and/or purpose of the CDA it could not have been acquired under the CDA Ordinance, but only under the Land Acquisition Act. 14. Compensation Amount: The landowners (the contesting respondents) were not satisfied with the amount of compensation determined by the Collector and/or wanted a percentage of plots from the Land56. Therefore, these cases were adjourned a number of times on the parties’ request to enable them to explore the possibility of a compromise, but a compromise did not materialize. The Land Acquisition Act stipulates that compensation is determined by the concerned Collector. If either party is not satisfied with the Collector’s determination, the referee court and thereafter the High Court in its appellate jurisdiction may be approached. Since the High Court 52 PLD 1972 Supreme Court 279. 53 Ibid, 290-291. 54 Ibid, paragraph 6, page 17 of the Judgment. 55 Ibid, paragraph 32, pages 35-6 of the Judgement. 56 Capital Development Authority Land Acquisition and Rehabilitation Regulation, 2007, S.R.O. 304(1)/2008 published in the Gazette of Pakistan, Extraordinary, Part II, on 20 March 2008. C.A. Nos. 1476 to 1485 of 2018, etc. 10 did not determine the matter of compensation it would be inappropriate to comment thereon, as it may affect the rights of either side. 15. Allotment of Plots to Different Categories of Persons: The learned Messrs Naeem Bukhari and Feisal Naqvi, representing the landowners, had raised concerns about the grant of plots at below market price to judges. Reference was also made to the judgement of Muhammad Nawaz Abbasi, J in the cases of Ghulshan Hussain v Commissioner (Revenue), Islamabad57 (‘Ghulshan Hussain case’) and Federal Government Employees’ Housing Foundation v Muhammad Akram Alizai58 (‘Federal Government Employees’ Housing Foundation case’). In the Ghulshan Hussain case land was acquired by the Foundation in Sector G-13 of Islamabad and the section 4 notification issued under the Land Acquisition Act was challenged. The Rawalpindi Bench of the Lahore High Court59 held that the acquisition was valid and if the compensation determined by the Collector was unacceptable then the remedies provided under the Land Acquisition Act are to be availed; no exception can be taken to this. However, the learned Muhammad Nawaz Abbasi, J went on to unnecessarily observe that Judges of the Supreme Court, of the Lahore High Court working at Rawalpindi, of the Federal Shariat Court and ‘senior members of the Armed Forces’ were entitled to receive plots from the Foundation. The Federal Government Employees’ Housing Foundation case was an appeal against the decision of a Service Tribunal60 and it was decided that, ‘the allotment of residential plot in the housing scheme of Housing foundation cannot be claimed as terms and conditions of service by a civil servant’; which to such extent cannot be faulted. And, once again the learned Muhammad Nawaz Abbasi, J repeated his earlier obiter observations made in the Ghulshan Hussain case with regard to judges’ and senior members of the Armed Forces’ entitlement to plots. These observations were without any basis, without considering the ‘terms and conditions of service’ of judges (Article 205 of the Constitution) and the oath of judges. One threads a thorny path when it comes to self-interest. Decisions must accord with the Constitution and the law. Neither the Constitution nor any law entitles judges and senior members of the Armed Forces to receive land. It is trite, but needs restating 57 2000 YLR 1711. 58 PLD 2002 Supreme Court 1079. 59 Before the establishment of the Islamabad High Court. 60 Under Article 212(2) of the Constitution of the Islamic Republic of Pakistan. C.A. Nos. 1476 to 1485 of 2018, etc. 11 that judges are not empowered to make law; they simply interpret it and if a law offends the Constitution they must strike it down or the offending part thereof. 16. Judge’s Remuneration and Terms and Conditions of Service: Judges’ entitlement to plots of land has been questioned, therefore, it needs to be addressed. Article 205 of the Constitution stipulates that, ‘The Remuneration and other terms and conditions of service of a Judge of the Supreme Court or of a High Court shall be as provided in the Fifth Schedule’ of the Constitution. The Fifth Schedule comprises of two parts; the first attends to ‘The Supreme Court’ and the second to ‘The High Court’. Both parts comprise of 6 clauses. Clause 1 mentions the monthly salary ‘or such higher salary as the President may, from time to time, determine’; clause 2 sets out the ‘privileges and allowances … as may be determined by the President’; clause 3 deals with the ‘pension payable’ to retired judges; clause 4, 5 and 6 respectively deal with the pension payable to the ‘widow of a Judge’, when its payment to her stops and if the judge’s children are entitled to the pension. None of these clauses state that judges are entitled to land. The last order issued by the President of Pakistan with regard to Judges was President’s Order No. 03 of 201861, which did not entitle judges to plots. 17. Are Judges Entitled to Receive Plots?: The Constitution and the law (presidential orders) do not entitle chief justices and judges of the superior courts to plots of land. The ‘Supreme Court of Pakistan: Judicial Estacode’62 (‘the Judicial Estacode’) also does not contain anything therein entitling chief justices and judges to plots of land. Likewise, the Manual of ‘Pay, Pension and other Privileges’63 (‘the Manual’), compiles the presidential orders, rules, and notifications regarding the pay, pension and privileges of judges, but the manual also does not contain anything entitling chief justices and judges of the superior courts to plots of land. 61 Salary of Judges of the Supreme Court Order, 2018, No.F.2(2)/2018-Pub., which raised the monthly salary of the Chief Justice of Pakistan to Rs. 931,204 and of every other Judge of the Supreme Court to Rs. 879,669. 62 Published by Supreme Court of Pakistan, 2019. 63 Compiled by the Librarian and Assistant Librarian of the Supreme Court, published by the Supreme Court of Pakistan, 2018, amended up to 22 April 2019. C.A. Nos. 1476 to 1485 of 2018, etc. 12 18. The Oath of Judges: ‘In all circumstances, I will do right to all manner of people, according to law, without fear or favour, affection or ill-will’ says the oath taken by chief justices and judges. Judges adjudicate disputes and ensure that the people are not deprived of their Fundamental Rights, which more often than not are enforced against the executive. The Federal and provincial governments, and organizations controlled or under them, are often arrayed as parties in cases. The aphorism that, justice must not only be done but be seen to be done, is undermined if people perceive that cases are not decided without fear or favour. The executive giving plots to judges constitutes a favour. The independence of the judiciary is a necessary concomitant to ensure its respect and credibility in the eyes of the people. 19. Financial Independence of Judges: The Constitution determines the terms and conditions of service of superior court judges and nothing can be subtracted therefrom or added thereto. The Constitution permits compulsory acquisition, however, it also sets out the terms and conditions of service of judges, and since the stipulated terms and conditions do not entitle judges to receive plots they are not entitled to receive plots from the Foundation or out of any compulsorily acquired land. The learned Messrs Naeem Bukhari and Feisal Naqvi are correct to state that judges are not entitled to receive plots. However, this argument cannot be extended to government servants or lawyers as mentioned above. 20. Only a Single Plot may be Received: In this case the Foundation had launched a scheme to allot plots to government servants and lawyers. The Land was acquired under the Land Acquisition Act. Those wanting a plot applied for it, paid its price and stood in the queue for his/her turn to receive it. A person’s housing needs stand redressed on receiving a plot on which to build a house. Therefore, no one can be given, nor can they receive, more than a single plot. The Foundation, government or any organization controlled by the government cannot provide a second or additional plot. Moreover, without specific legal sanction, no one, including the Prime Minister, has the discretion to grant land, a house or an apartment to anyone. 21. Plots for Junior Officers and Lower Income Staff: When the Foundation, government or an organization controlled by a government launches a scheme to provide housing it would be appropriate to ensure that smaller C.A. Nos. 1476 to 1485 of 2018, etc. 13 and cheaper plots are also made available to cater to the need of junior officers and lower income staff reflecting their percentage in government service because the Constitution does not distinguish between senior and junior officers and officials with regard to service of Pakistan. With regard to plots/lands the Constitution also does not distinguish between civilian and armed forces personnel, between junior and senior officers nor creates a special category of senior members of the Armed Forces (as per Muhammad Nawaz Abbasi, J). 22. Plots and Land Grants to Members of the Armed Forces: Different laws govern those employed in the Army64, Air Force65, Navy66, Rangers67, Frontier Constabulary68, Frontier Corps69, National Guards70, Coast Guards71 and Airports Security Force72; the laws governing them do not provide that they be given residential plots, commercial plots or agricultural land nor permits them to receive the same. Nevertheless, senior members of the Armed Forces get plots and agricultural lands and continue to be given additional plots and agricultural lands as they rise up the ranks. In his 655-page book the brother of General Asif Nawaz73 brings privileged, personal and scholarly insight into the Armed Forces of Pakistan74. General Mohammad Ayub Khan was preceded by two British officers75 as Pakistan’s Army Chiefs. When General Gracey was commanding Pakistan’s Army General Mohammad Ayub Khan approached him with a request for a plot but he was rebuffed by the Army Chief; ironically a British officer preserved Pakistan’s land from a son of the soil. The author mentions the grant of subsidized plots and other benefits76 and states, ‘Gradually, the mores of the military changed to make all such “sweetheart” deals acceptable”77. Shuja Nawaz in his book under the chapter - ‘United Pakistan: How to Break 64 The Pakistan Army Act, 1952. 65 The Pakistan Air Force Act, 1953. 66 The Pakistan Navy Ordinance, 1961. 67 The Pakistan Rangers Ordinance, 1959. 68 The North-West Frontier Constabulary Act, 1915. 69 The Frontier Corps Ordinance, 1959. 70 The National Guards Act, 1973. 71 The Pakistan Coast Guards Act, 1973. 72 The Airports Security Force Act, 1975. 73 The Chief of Army Staff of Pakistan, 1991-1993. 74 Shuja Nawaz, Crossed Swords - Pakistan, its Army, and the Wars Within, Oxford University Press, Pakistan (2008). 75 General Sir Frank Walter Messervy and General Sir Douglas Gracey. 76 ‘The Report of the Hamoodur Rehman Commission of Inquiry into the 1971 War, (Lahore, Karachi, Islamabad: Vanguard) p. 291.’ 77 Shuja Nawaz, Crossed Swords - Pakistan, its Army, and the Wars Within, Oxford University Press, Pakistan (2008), p. 253. C.A. Nos. 1476 to 1485 of 2018, etc. 14 up a Country’ writes, ‘the practice of multiple plots was to become common, giving rise to a new “Culture of Entitlement” that permeated both the military and civil bureaucracies and that would become embedded in Pakistan society’78. This Court in a different context79 had castigated a Brigadier who was not satisfied with what he already had received, saying, ‘It is high time that we should learn from history’80 and quoted from an American classic81 to express the Court’s displeasure – ‘The land fell into fewer hands, the number of the dispossessed increased and every effort of the great owners was directed at repression. The money was spent for arms, for gas to protect the great holdings, and spies were sent to catch the murmuring of revolt so that it may be stamped out.’ 23. Service of Pakistan: The Constitution82 defines the service of Pakistan as under: "Service of Pakistan" means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Majlis-e-Shoora (Parliament) or of a Provincial Assembly… [emphasis added] Both civil service and armed forces personnel are in the service of Pakistan; the Constitution creates no distinction between them. Civil servants are employed in different departments of government doing what their respective mandates stipulate while armed forces personnel defend the country against external aggression and act in aid of civil power when called upon to do so83. The people of Pakistan pay for the services provided by each category. Those in the service of Pakistan can receive only that which the law sanctions. The terms and conditions of all those in the service of Pakistan are set out in the laws respectively applicable to them. Article 240 of the Constitution stipulates, that, ‘Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined’ by the Federation through an Act of Parliament and for those in the service of a province through an Act of the Provincial Assembly of the province. 78 Ibid, p. 253. 79 Brigadier Muhammad Bashir v Abdul Karim (PLD 2004 Supreme Court 271) which pertained to the Colonization of Government Lands (Punjab) Act, 1921. 80 Ibid, per Javed Iqbal, J, p. 284. 81 John Steinbeck, Grapes of Wrath, (1939). Steinbeck received the Nobel Prize for Literature. 82 Article 260(1) of the Constitution of the Islamic Republic of Pakistan. 83 Article 245 of the Constitution of the Islamic Republic of Pakistan. C.A. Nos. 1476 to 1485 of 2018, etc. 15 24. Equal Treatment: The laws governing civil and armed forces personnel do not entitle them to receive residential plots, commercial plots or agricultural land. If residential plots, commercial plots and agricultural land are given to only one category in the service of Pakistan, that is to members of the armed forces, and the civilians in the service of Pakistan are disregarded, it constitutes discrimination and offends the Fundamental Right of equality84. However, the Foundation, a government or an organization controlled by a government may launch a housing scheme for the members of the Armed Forces, and when this happens they may apply for the allotment of a single plot for housing. But, they like every other applicant of such schemes will have to pay the requisite amount (not subsidized by the State), stand in queue and await their turn for allotment in terms of the applicable methodology. And, the plot which is allotted/granted must not be large because available land is finite and the list of beneficiaries is long, and keeps growing longer. The prevailing practice of granting State/public plots and land to members of the Armed Forces is contrary to the Constitution and the law. Laws can also not be enacted to enable such allotments/grants because if enacted these would violate the Constitution (Articles 24, 25, 205 and 227) and be void85. The Constitution does not permit self-enrichment and personal aggrandizement. ‘During the period of Hazrat Umar at one occasion such a situation had arisen with regard to some land and the Mujahideen demanded distribution of the said land to them but the Caliph refused to give the said land to the Mujahideen with the consideration that Islam strictly prohibits the establishment of an individual interest in the State property in preference to the public interest.’86 25. Pensions: Those in the service of Pakistan retire at the age of 60, Chief Justice and Judges of the High Courts at the age of 62 and Chief Justice and Judges of the Supreme Court at the age of 65; by which age most, if not all, already have a place to call home; if they don’t, they will receive a sizeable monthly pension which they can use to rent a place. The amount to be spent in the current financial year 2020-2021 on pensions is 84 Article 25 of the Constitution of the Islamic Republic of Pakistan. 85 Article 8 of the Constitution of the Islamic Republic of Pakistan. 86 Ghulshan Hussain v Commissioner (Revenue), Islamabad, 2000 YLR 1711, 1727 and Federal Government Employees Housing Foundation v Muhammad Akram Alizai, PLD 2002 Supreme Court 1079, 1095. C.A. Nos. 1476 to 1485 of 2018, etc. 16 470,000,000,00087 rupees (four hundred and seventy billion rupees); of which 111,000,000,000 rupees (one hundred and eleven billion rupees) is to be spent on retired civilians and 359,000,000,000 rupees (three hundred and fifty-nine billion rupees) is to be spent on retired personnel of the Armed Forces. The annual cost of pension payments is almost equal to the cost of ‘Running of Civil Government’, which is 476,589,000,00088 rupees (four hundred and seventy-six billion, five hundred and eighty-nine million rupees). The people of Pakistan pay these pensions despite having very little themselves. To serve the nation is a singular honour. When, in addition to receiving pensions, public lands are taken it is eminently unfair. 26. Prebendalism: A system which grants benefits to those holding official positions is referred to as a ‘prebendal order’89. In a prebendal order ‘the strong exploit and abuse the weak’90 in a ‘tenacious and self-enforcing mechanism’91. The philosopher Thomas Hobbes described such yearnings as ‘a perpetual and restless desire of power after power, that ceaseth only in death’92. A prebendal order enriches the powerful elite. ‘Prebendalism was sustained by a relatively narrow civil-military elite’.93 Dr. Richard Joseph in his seminal work94 noted that those who use their offices to benefit and enrich themselves emulate a discredited feudal practice; his research revealed that prebendalism made it difficult to determine the true extent of public corruption. 27. Indebtedness: Pakistan is heavily indebted. The people pay astronomical amounts to service the accumulated debt. This financial year95 2,946,135,000,000 rupees (two trillion, nine hundred and forty-six billion, one hundred and thirty-five million rupees) will be paid to service debt96; 87 Government of Pakistan, Federal Budget 2020-21, (Finance Division, 12 June 2020) <http://www.finance.gov.pk/budget/Budget_in_Brief_2020-21_English.pdf>. 88 Ibid. 89 A term coined by Dr. Richard Joseph (Professor Emeritus Northwestern University) in his book Democracy and Prebendal Politics in Nigeria (1st edition, Cambridge University Press, 1987). 90 Professor (University of Oxford) Wale Adebanwi and Professor (University of Kansas) Ebenezer Obadarte, Democracy and Prebendalism in Nigeria - Critical Interpretations (1st edition, Palgrave Macmillan, 2013) p. x. 91 Ibid, p. viii. 92 Thomas Hobbes, Leviathan (first published in 1651, Penguin 1985). 93 P. Lewis, From Prebendalism to Predation: the Political Economy of Decline in Nigeria (1996) 34 The Journal of Modern African Studies, p. 79-103, 100. 94 Dr. Richard Joseph, Democracy and Prebendal Politics in Nigeria (1st edition, Cambridge University Press, 1987). 95 2020-2021. 96 Government of Pakistan, Federal Budget 2020-21, (Finance Division, 12 June 2020) <http://www.finance.gov.pk/budget/Budget_in_Brief_2020-21_English.pdf>. C.A. Nos. 1476 to 1485 of 2018, etc. 17 this astronomical amount does not include the repayment of a single dollar, sterling, yen, euro or rupee. And, the government continues to take more loans; piling debt upon debt, and adding billions to debt servicing. Debt- servicing is the single largest component of the Federal expenditure. Children, their unborn children and the unborn children of the unborn are born into poverty, and will remain impoverished till death. In this dire situation giving away the one asset that the people do have, their land, is inexplicable. 28. Precedents on Land Conferrals: The judiciary and the armed forces of Pakistan are patterned on the British model. Land is not given away to judges and to the members of the armed forces in Britain, in the United States of America nor in any commonwealth country, with the singular exception of Pakistan. At the time when the subcontinent was captured and ruled by the East India Company, and later when it came under the direct rule of the British Crown, British officers, soldiers and judges, whether deployed in the subcontinent or serving at home, were not conferred land. They also did not have rights to captured territory and property. Sometimes a portion of captured property was distributed amongst officers and soldiers as prizes, but it was made clear that this was not by way of entitlement. In the Deccan prize-money case of Alexander v Duke of Wellington97 it was held that98: All prize is clearly and distinctly the property of the Crown. This is a principle not to be disputed… It is equally incontrovertible that that the Crown possesses this property absolutely, and wholly without control; that it may deal with it entirely at its pleasure; may keep it for its own use; may abandon or restore it to the enemy; or, finally, may distribute it in whole or in part among the persons instrumental in its capture; making that distribution according to whatever scheme, and under whatever regulations and conditions it sees fit. It is equally clear that the title of a party claiming prize must in all cases be the act of the Crown, by which the royal pleasure to grant prize shall have been signified to the subject. ‘The capturing force having therefore no legal right to the spoils of war’.99 When a portion of captured property was distributed amongst officers and soldiers it was done pursuant to a legal enactment. The land distributed 97 2 Russell and Mylne’s Reports, 54; reproduced in H. Prendergast, Law Relating to Officers in the Army (2nd edition, Parker, Furnivall, and Parker, Military Library, London, 1855) p. 106. 98 Lord Chancellor Brougham. 99 n97, p. 107. C.A. Nos. 1476 to 1485 of 2018, etc. 18 amongst the officers of the armed forces of Pakistan is not captured land nor has Parliament authorized its distribution. Those who serve in the judiciary and in the armed forces of Pakistan receive a salary for their services and receive a pension on their retirement; they do not serve in the expectation of receiving land from the State. 29. Elite Capture and Impoverishing the Poor: Elite capture creates, ‘a “predatory state” in which the division between private and public interests is totally dismantled’100. ‘Elite patronage is not always associated with autocratic rule; it can sometimes continue even after the formal transition to democracy’.101 But, ‘Following the demise of domestic rule, however, the distribution of benefits becomes increasingly characterized by exclusionary, centralized distribution modes favouring powerful groups like top military officers’102. Studies by preeminent researchers103 have found that democracy is an institutionally established mechanism for regulating resources and hence effective in controlling elite capture. The horizontal expansion of Pakistani cities104 took place when land was distributed amongst members of the armed forces105; these areas have come to dwarf the original cities. If this land was sold at market-price Pakistan may have escaped the indebtedness that it suffers and its people not made to suffer calamitous, backbreaking and perpetuating poverty. The manner in which land is distributed impoverishes and marginalizes the poor further. ‘When communities have well-established organizations where the poor are sufficiently empowered, the participatory approach is on safe grounds. The problem arises when local organizations do not exist or when they are dominated by strong elites driven by their peculiar interests.’106 It needs 100 Arild Schou (Professor at the University of South-Eastern Norway), Demand-driven Poverty Programmes and Elite Capture in Malawi: Between Prebendalism and Benevolence, European Journal of Development Research, Vol. 19, p. 594-613, 597. 101 Ibid. 102 Ibid. 103 Jean-Phillipe Platteau, Professor of Economics and Director of the Centre for Research on the Economics of Development at the University of Namur, Belgium and Frederic Gaspart, Associate Professor of Economics at the Faculty of Agricultural Sciences at the University of Louvain-La- Neuve, Belgium. 104 https://earth.google.com, Historical Imagery. 105 Commenced under the unconstitutional rule of General Mohammad Ayub Khan, established under the dictatorship of General Zia ul Haq and perpetuated ever since. 106 F. Gaspart and J. Platteau, Is Cheap Aid Money Good for the Poor?, Centre for Research on the Economics of Development, 2012 <www.editorialexpress.com/cgibin/conference/download.cgi?db_name=CSAE2013&paper_id=4 94>. C.A. Nos. 1476 to 1485 of 2018, etc. 19 restating that the people have not sanctioned the distribution of land to judges and to the members of the Armed Forces. 30. Enriching the Elite and Tax Free: Most Pakistanis struggle their entire lives to put a roof over their heads. Judges and officers of the armed forces who receive land in prized urban locations invariably do not build on it a house for themselves to live in, and those officers who get agricultural lands do not cultivate it. They sell their plots and agricultural land or become absentee landlords. ‘This negative perception and reference to the most visible and talked about aspects of military rule and operations: foremost of which is the creation of residential Defence Housing Societies throughout the country for military officers, which yield huge windfall profits when individual officers sell their plots – reflects one of the many challenges to the army today. The sale of each urban plot fetches hundreds of millions of rupees. The army is perceived to be in charge…everywhere.’107 These profits are also not taxed and the original recipients do not pay fees and duties108 which even the poor pay. ‘This benefits ladder has been defined by the army itself, over time, with officers now allowed access to subsidized housing plots at almost all their senior posting stations, where such valuable land is available for allocation at the discretion of the local army commanders and not the civilian government.’ Many senior officers liquidate these assets, convert the sale proceeds into foreign currency, send the money abroad and live luxurious lives in prime locations overseas, creating disillusionment in the ranks. The ranks may also question why, say a general’s need for housing and agriculture is more pressing than theirs, as it is their lives which are more susceptible to danger as they stand more exposed. 31. Land Unavailable for Public Utilities and Services: A just social order, and an Islamic one, enjoins the well-being of the people; the provision of basic necessities and public welfare. Islam is a religion of community (ummah); the spirit of community is ordained from Above; Almighty Allah is 107 Shuja Nawaz, Crossed Swords - Pakistan, its Army, and the Wars Within, Oxford University Press, Pakistan (2008), p. 567. 108 This is done by surrendering the original allotment order in exchange for money (sale consideration) and a valuable piece of property is surrendered (transferred) and a fresh allotment order is issued in favour of the purchaser. Since the ‘powerful’ in the country are the beneficiaries of this most suspect mechanism, questions are not raised either by the Federal Board of Revenue (‘FBR’) or by the provincial authorities which are required to collect stamp duty under the Stamp Act, 1899 and registration fee on transfers under the Registration Act, 1908. C.A. Nos. 1476 to 1485 of 2018, etc. 20 present in every human community109 and is ‘closer to you than your jugular vein’110. State or community (ummah’s) land can only be used for everyone’s benefit; for public hospitals, clinics, graveyards, police stations, schools, universities, parks, playgrounds, sport facilities, retirement homes, bus and train stations, water reservoirs, drains, abattoirs and other public purposes which serve society. It is also meritorious to establish hospitals for birds and animals because the earth is for all ‘the creatures’111 (lil’anami) and to provide a place for the community112 of injured or lame animals to live protected and in peace. But land is not available for utilities and public services and the destitute and the poor are cast aside. However, free or heavily subsidized State/public land is distributed amongst the elite. People lose faith in the system of governance, despondency sets in and society then comes to be held together by sheer force. 32. Injunctions of Islam: The Constitution mandates that ‘all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah … and no law shall be enacted which is repugnant to such Injunctions’113. The practice of giving away the ummah’s land to judges and to members of the armed forces is contrary to the Injunctions of Islam. Islam jealously guards the properties and assets of the ummah (community/State). The majority of citizens are poor, they barely manage to eke out a subsistence. Most live out their lives without the ability to buy a couple of marla114 of land to build a shack on. Many encroach on State land and often in precarious places like alongside riverbeds and storm drains to put a roof over their and their children’s heads; forever exposed to the elements and the threat of eviction and demolition of their shanty homes, a threat which is oftentimes carried out. An Islamic polity is founded on the principle of unity and brotherhood115 which is fractured when those in dire poverty and abject need are ignored. Islam is a religion of balance, ‘He imposed the balance (al-mizan)’116 and we are directed not to ‘transgress the balance’117; the balance is ruptured when lands are bestowed on the 109 Al-Qur’an, surah Al-Mujadilah (58) verse 7. 110 Al-Qur’an, surah Qaf (50) verse 16. 111 Al-Qur’an, surah Ar-Rahman (55) verse 10. 112 Al-Qur’an, surah Al-Anam (6) verse 38, surah An-Nur (24) verse 41 and surah Ar-Rahman (55) verse 10. 113 Article 227 of the Constitution of the Islamic Republic of Pakistan. 114 25 square yards. 115 ‘Indeed believers are (one another’s) brothers’ - Al-Quran, surah Al-Mujadilah (58), verse 10. 116 Al-Qur’an, surah Ar-Rahman (55) verse 7. 117 Ibid, verse 8. C.A. Nos. 1476 to 1485 of 2018, etc. 21 elite. The Holy Qur’an mandates that the destitute, the poor and the needy are entitled to charity and may be supported by the State (ummah). Almighty Allah says that, ‘charity (sadaqatu) is only for the poor (fuqara'), the needy (masakin)’118, etcetera. If a person is not poor (fuqara) or needy (masakin) it is not permissible to give him/her the ummah’s land. When the ummah’s land is bestowed upon the privileged elite, those blessed with good salaries, secure jobs and pensions may attract the Qur’anic rebuke, ‘Competing to piling up (worldly things) distracts you, until you visit your graves’119. The Prophet Muhammad (peace and blessings be upon him) graphically expanded on this insatiable desire for wealth, ‘If a man had a valley full of gold, he would want another valley full of gold, but in the end only dust will fill his mouth’120. 33. Unconstitutional Nondisclosure and Secrecy: The affront to the people is confounded when information with regard to distribution of State / ummah’s land is kept under wraps. The people have every right to know what is given to those in the service of Pakistan and holding constitutional positions. There is no quicker way to lose public trust then to shroud information in secrecy. To withhold such information from the people is unconstitutional. The ‘right to Information’ is a Fundamental Right121. Almighty Allah says that ‘there is no good’122 in secrecy except when giving charity, extending kindness and effecting reconciliation. Keeping public matters secret is castigated123. The Holy Qur’an calls on believers to, ‘firmly establish truth’124 (liyuhiqqa l-haqqa) and not to ‘hide the truth’125. ‘The truth will set you free’126. ‘The Report of the Hamoodur Rehman Commission of Inquiry into the 1971 War’, a Commission headed by the Chief Justice of Pakistan, reported that, ‘responsible service officers’ had asserted before the Commission that ‘corruption resulting from … lands and houses’ had resulted in loss of will to fight and loss of professional competence. These 118 Al-Qur’an, surah At-Tawbah (9) verse 60. 119 Al-Qur’an, surah At-Takathur verses 1 and 2. 120 Narrated on the authority of Anas bin Malik, Sahih Al-Bukhari, 6439, also in Al-Muslim. 121 Article 19A of the Constitution of the Islamic Republic of Pakistan. 122 Holy Qur’an, surah An-Nisa (4) verse 114. 123 Holy Qur’an, surah At-Tawbah (9) verse 78, surah Al-Isra (17) verse 47, surah Ta Ha (20) verse 62, surah Al-Anbiya (21) verse 3, surah Az-Zukhruf (43) verse 80 and surah Al-Mujadilah (58) verse 10. 124 Holy Qur’an, surah Al-Anfal (8) verse 8. 125 Holy Qur’an, surah Al-Baqarah (2) verse 42. 126 Attributed to the Prophet Isa (peace be upon him), John 8:32. C.A. Nos. 1476 to 1485 of 2018, etc. 22 disastrous consequences127 and the aphorism, those who do not learn from history are condemned to repeat it must be avoided. 34. Declaration by Quaid-i-Azam Mohammad Ali Jinnah: The Constitution dictates that, we must remain, ‘Faithful to the declaration made by the Founder of Pakistan, Quaid-i-Azam Mohammed Ali Jinnah, that Pakistan would be a democratic State based on Islamic principles of social justice’128. The Quaid addressed ‘Civil, Naval, Military & Air Officers of the Pakistan Government’129, and said: The establishment of Pakistan for which we have been striving for the last ten years is, by the grace of God, an established fact today, but the criterion of a State of our own was means to an end and not end in itself. The idea was that we should have a State in which we could live and breathe as free men and which could develop according to our own lights and culture and where principles of Islamic social justice could find freeplay130. The Quaid131 wanted Pakistan to be a prosperous and happy place to live in; a place which ensured the well-being of the people and above all of the poor: Now, if we want to make this great State of Pakistan happy and prosperous we should wholly and solely concentrate on the well-being of the people, and especially of the masses and the poor.132 The primary reason for the creation of an independent nation state by Mohammad Ali Jinnah and his companions was to enable believers to freely pursue their faith, to end discrimination and the economic exploitation of the people. We must never forget that Pakistan was, ‘achieved by the 127 ‘His [General Mohammad Ayub Khan] economic policies mostly resulted in the unequal distribution of wealth between certain privileged classes and the common person. With the growth of the economy, a vacuum of income between the inter-regional, inter-personal, rich and poor classes grew. A gap between the majority people of East Pakistan and West Pakistan was clearly visible.’ This inequality is stated to have contributed towards the country fragmenting into two separate States. Pakistan’s First Military Coup: Why Did the First Pakistani Coup Occur and Why Does it Matter? Naghman Chaudhry, Captain Pakistan Navy, 2004-5, thesis submitted for the degree of Master of Arts in Security Studies; referenced S. J. Burki, Ayub’s Fall, A Socio-Economic Explanation, Asian Survey, Vol. 12, No. 3, March 1972. 128 The Preamble to the Constitution of the Islamic Republic of Pakistan, quite unlike the preambles to the constitutions of other countries, is not a mere introduction or adornment but a ‘substantive part of the Constitution and shall have effect accordingly’ (Article 2A of the Constitution). 129 At Khaliqdina Hall, Karachi on 11 October 1947. 130 Z. H. Zaidi, Editor-in-Chief, Jinnah Papers - Pakistan at Last, Volume IV, published by Quaid- i-Azam Papers Project, Cabinet Division, Government of Pakistan (1999) p. 75. 131 Presidential Address to the Constituent Assembly of Pakistan, 11 August 1947 at Karachi. 132 Z. H. Zaidi, Editor-in-Chief, Jinnah Papers - Pakistan at Last, Volume IV, published by Quaid- i-Azam Papers Project, Cabinet Division, Government of Pakistan (1999). C.A. Nos. 1476 to 1485 of 2018, etc. 23 unremitting struggle of the people against oppression and tyranny’133. Bestowing wealth, which is unearned, obliterates the cherished goals of Pakistan. 35. Serving Humanity Without Reward: The leaders of the Freedom Movement, of the All-India Muslim League, who got us Pakistan, amongst whom were many who had lost their own homes, did not take a single square inch of land. These proud Freedom Fighters of Pakistan were also not remunerated nor pensioned. They spent from their own pockets to create Pakistan. Their only motivation was a burning desire to serve the people. The constitutional goal of ‘creating an egalitarian society’134 is undermined when public land furtively finds its way into private hands. 36. For the reasons mentioned above, I concur with the conclusions arrived at by the learned Mushir Alam, J: that the applicable law for the compulsory acquisition of the Land was the Land Acquisition Act, that the Land was legally acquired by the Foundation and that its distribution amongst the allottees did not violate the Land Acquisition Act nor the Constitution. 37. It would be appropriate to translate this judgment into Urdu135 for its wider dissemination as it contains matters of public importance. Since the Pakistan Electronic Media Regulatory Authority Ordinance, 2002136 was enacted to also, ‘ensure accountability, transparency and good governance by optimizing the free flow of information’137, therefore, a copy of this judgment be sent to the Pakistan Electronic Media Regulatory Authority138 (‘PEMRA’) which is directed to send copies onwards to its licencees, who may want to broadcast it. And, PEMRA should ensure that such broadcasts are unimpeded. Islamabad, JUDGE Dated: 8 October 2020. 133 Preamble - Objectives Resolution – of the Constitution of the Islamic Republic of Pakistan. 134 Ibid. 135 Article 251 of the Constitution of the Islamic Republic of Pakistan. 136 Gazette of Pakistan, Extraordinary, Part I, published on 1 March 2002 (PLD 2002 Federal Statutes 63). 137 Preamble (iv) of the Pakistan Electronic Media Regulatory Ordinance, 2002. 138 Constituted under section 3 of the Pakistan Electronic Media Regulatory Ordinance, 2002.

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, CJ MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL APPEAL NO. 1477 OF 2019 (On appeal against the judgment dated 01.02.2017 passed by the Peshawar High Court, Peshawar in Writ Petition No. 1588-P/2013) Muhammad Siddique …Appellant VERSUS Senior Executive Vice President, PTCL and others …Respondent(s) For the Appellant: In person For the Respondents: Mr. Shahid Anwar Bajwa, ASC Date of Hearing: 09.06.2021 … JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through this appeal by leave of the Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the appellant has called in question the judgment dated 01.02.2017 passed by the Peshawar High Court, Peshawar, whereby writ petition filed by him was dismissed. 2. Succinctly stated the facts of the matter are that the appellant was working as Senior Accounts Clerk (BPS-11) in the respondent department. Pursuant to introduction of Voluntary Separation Scheme (VSS), the appellant applied for the same. Considering his basic salary as Rs.7605/- per month, he was paid emoluments of Rs.198,8999/- vide letter dated 05.03.2008. At the time of final settlement, an amount of Rs.81,520/- was also recovered on account of outstanding house building advance. However, the appellant claimed that his last basic pay was Rs.8070/- and the emoluments should be calculated on the basis of this last pay. According to him, the outstanding amount of house building advance was Rs.77750/- instead of Rs.81520/-. Keeping in view the wrong calculation, he served grievance notice on 03.11.2008 upon the respondents but the same was Civil Appeal No. 1477/2019 2 never responded. The appellant then filed petition before Labour Court, Peshawar, which stood dismissed vide order dated 27.05.2010. This decision was maintained by the Labour Appellate Tribunal vide judgment dated 06.06.2012 as also by the learned Peshawar High Court vide impugned judgment. Hence, this appeal by leave of the Court. 3. The appellant, who appeared in person, submitted that the learned courts below have misread the evidence and decided the matter in a hasty manner without deeply appraising the record; that according to Last Pay Certificate (LPC), his basic salary was Rs.8070/- but the courts below never taken into consideration this document; that he is put to loss of Rs.465/- per month in pension, thus a valuable right has been accrued in his favour; that he had availed house building loan of Rs.77,520/- but the department has wrongly deducted Rs.81,520/- thereby putting him to financial loss of Rs.4000/-. 4. On the other hand, learned counsel for the respondents mainly contended that there are concurrent findings of three courts below against the appellant and that the claim of the appellant is false and he does not deserve any relief by this Court. 5. We have heard the appellant in person and learned counsel for the respondents at some length and have perused the record. 6. It appears from the record that the department had introduced Voluntary Separation Scheme somewhere in November, 2007. The appellant applied for the same and vide letter dated 21.01.2008, the appellant was asked to complete the requisite documents by 25.01.2008. After completing all codal formalities, he was paid the emoluments vide letter dated 05.03.2008 considering his basic pay as Rs.7605/- per month. We have perused two documents available on record. One is Last Pay Certificate (LPC) dated 29.03.2018 (Exh.PW2/5) and Initial Pay Slip dated 28.02.2008 (Exh.PW-2/4). Both these documents clearly show that at the relevant time, the basic pay of the appellant was Rs.8070/-. The appellant has also produced on record an email dated 09.03.2008 (Ex.PW-2/5), written by Manager HR, Peshawar to General Manager, PTCL, which was to the effect that according to service book, the basic pay of the appellant was Rs.8070/-. The learned courts below while refusing the claim of the appellant put much stress on the point that while appearing as PW-3, he had admitted during cross-examination that his basic salary was Rs.7605/- per month. However, in view of the aforesaid documents available on Civil Appeal No. 1477/2019 3 record, which clearly show that at the relevant time the basic salary of the appellant was Rs.8070/-, the oral statement of appellant has no force and the same cannot be used against him to deprive him of his valuable rights. The appellant has admitted before us that at the time of cross-examination, he inadvertently mentioned his basic salary as Rs.7605/- and later on he tried to rectify his mistake by placing reliance on the aforesaid documents but these documents were never taken into consideration by the courts below. There is a well known dicta that ‘a man can tell a lie but a document cannot’. If a person has or has been bestowed some legal right and he omitted to claim such legal right through oral assertion but the best documentary evidence of which the case in its nature is susceptible is found in his favour then the documentary evidence in favour of a person should be given credence. When we confronted learned counsel for the respondents with this aspect of the matter, he candidly conceded that as only a difference of approximately Rs.450/- per month in the pension and an amount of Rs.47000/- in the commutation would occur, he would not oppose the claim of the appellant. So far as the difference of Rs.4000/- in the house building loan amount is concerned, learned counsel for the respondents also frankly conceded that since it is a meager amount, he will not oppose the claim of the appellant. 7. For what has been discussed above, this appeal is allowed and the impugned judgment is set aside. The respondent department is directed to recalculate the monthly pension and the amount of outstanding house building advance of the appellant in the light of this judgment and pay the difference to the appellant within a period of one month. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 9th of June, 2021 Not Approved For Reporting Khurram

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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 APPEAL NO.1481 OF 2007 [On appeal against the Judgment dated 16.06.2007, passed by the High Court of Sindh, Karachi, in C.P.No.D-1549 of 2005] Province of Sindh through its Chief Secretary & 8 others Appellant(s) VERSUS Syed Kabir Bokhari Respondent(s) For the Appellant(s) [Appellants No.1, 4, 6-9] : Mr. Qasim Mirjat Addl.A.G. Sindh Raja Abdul Ghafoor, AOR [Appellants No.2, 3 & 5] : Syed Jamil Ahmed, ASC Raja Abdul Ghafoor, AOR For the Respondent(s) : Dr. A. Basit, Sr. ASC Date of Hearing : 10.02.2015 JUDGMENT GULZAR AHMED, J.— The brief facts of the matter are that through two identical allotment orders dated 23.2.1976, Karachi Development Authority (KDA), on acceptance of highest bid of the respondent, had allotted two kiosks Plot No.1 and Plot No.2 in Block IV, each measuring 100 Sq.Yards, in Scheme No.5, Kehkashan, Clifton, Karachi at the rate of Rs.505/- per Sq.Yard (the disputed plots). Through possession orders both dated 24.2.1976 the KDA handed over the possession of disputed plots to the respondent. The possession order provided that 99 years lease will be granted on C.A.No.1481 of 2007.doc 2 payment of full occupancy value. It is further alleged that respondent has paid the full occupancy value of the disputed plots. Subsequently it transpired that in the master plan of KDA Scheme 5, Kehkashan Clifton, Karachi made by the KDA and notified on 06.10.1964 there was no land earmarked for the purpose of two kiosks and the allotment of the disputed plots to the respondent was illegal. Two show cause notices, both dated 14.7.2005, were issued by the CDGK, Land Management Department (Successor of KDA) for canceling the allotment of the disputed plots of kiosks Nos.1 & 2 on the ground that respondent has failed to raise construction on the disputed plots within stipulated period of two years from the date of possession and further the disputed plots were carved out from amenity plot without completing the codal formalities and thus the allotment order was ab initio void and illegal. Through two letters both dated 05.8.2005 the allotment of the disputed plots of kiosks Nos. 1 & 2 were cancelled. The respondent filed C.P.No.D-1549/2005 in the High Court of Sindh at Karachi challenging the cancellation orders. The learned Division Bench of High Court of Sindh at Karachi, through short order dated 30.5.2007, allowed the said petition and directed the respondents (the appellants in the present appeal) to execute lease deed in favour of the petitioner (respondent herein) of the disputed plots of kiosks No. 1 & 2 and also transfer the site in terms of the allotment orders. The detailed judgment was given on 16.6.2007. The appellant challenged the said judgment in this Court and vide order dated 09.8.2007 leave to appeal was granted to consider the following questions: i) Whether, in the facts and circumstances of the case, the plots viz: kiosk Nos. 1 and 2 allotted to the respondent in the year 1976 through open auction could be C.A.No.1481 of 2007.doc 3 cancelled in the year 2005 on the ground that in revised plan prepared by Government the same were carved out from the land originally meant for amenity purposes particularly when after such cancellation the very kiosks have been advertised by City District Government for public auction as commercial plots? ii) Whether the cancellation f allotment of plots in dispute after full payment received from respondent and possession handed over to him was validly and legally made after twenty nine years of the allotment? 2. We have heard the learned counsel for the parties at length and have also gone through the record of the case. 3. There is no dispute between the parties on the factual controversy that is the allotment of disputed plots to the respondent, the payment of its price/occupancy value, delivery of possession, issuing of show cause notice and cancellation of disputed plots. The main argument revolved before us was on the question that disputed plots were part of an amenity plot. The fact that the disputed plots become part and parcel of parking lot for providing parking facility to the public is also not in dispute for that there is a inspection report of Deputy Nazir of High Court dated 15.12.2005 so also the report dated 18.10.2012 of the Office Incharge of the Supreme Court of Pakistan, Branch Registry Karachi, wherein the position reflected on the ground is that the disputed plots are shown to be part and parcel of parking lot made by the CDGK. It was proposed by the counsel for respondent that the respondent is prepared to accept the cancellation of the disputed plots for use as a parking space for public provided the respondent is paid appropriate compensation in that respondent has acquired proprietary right in the disputed plots and such right cannot be denied or taken away. C.A.No.1481 of 2007.doc 4 4. Both learned Additional Advocate General Sindh appearing for the appellant Nos. 1, 4, 6 and 9 and Syed Jameel Ahmed learned ASC appearing for the appellant Nos. 2, 3 & 5 have sought time to seek instructions from their respective parties on the point of payment of compensation but despite availing of ample time, no response has been made by the above named two counsel for the appellants. It therefore, transpires that the appellants are not willing to pay compensation to the respondent in respect of disputed plots. 5. On perusal of the record, we find that in the revised layout plan of Kehkashan, Scheme 5, Clifton, Karachi made in the year 1972, a copy of which is attached with CMA No. 4472/2011 filed by the counsel for respondent, does not anywhere reflect availability of any land or plots for the purpose of kiosks. There is land showing cross lining in front of which is an open land. In this open land perhaps the petitioner in his own hardwiring has shown to be having the deputed plots of two kiosks. Yet another copy of another revised layout plan of 1975 is attached with the same CMA, which also reflects that the similar position of land, which is shown in the revised plan of 1972 except that there is an insertion of two squares, which are shown to be located outside the cross lining area. The respondent in his letter dated 10.7.2003 addressed to the District Executive Officer, Master Plan Group of Office, CDGK has himself stated that due to error the KDA at the time of making the Master Plan of Kehkashan Clifton Scheme 5 Karachi two kiosks were not included in the master plan and requested for their incorporation in the master plan. This very letter of respondent lend support to the fact that in the master plan of Kehkashan, Scheme 5, Clifton, Karachi there was no existence of any plot for kiosks. C.A.No.1481 of 2007.doc 5 6. It is not the case of respondent before us that the disputed plots allotted to the respondent were the plots meant for commercial use and such also does not appear to be the position emerging on examining the two master plans as referred above. The master plan shows that the land having cross lines apparently is meant for amenity/land for public use and not a space/land meant for allotment for use in commercial venture. Depiction of two squares in the revised master plan of 1975 is outside the lined area does not appear to be factually correct as has become known from the two reports; one submitted by the Deputy Nazir of High Court of Sindh and the other of Office Incharge of this Court in which the disputed plots are shown to be part and parcel of parking lot of CDGK and not out side it. The land immediately outside the parking lot is a beach, which become submersible by sea water on high tide. 7. All these factors show that the disputed plots allotted to the respondent were carved out from amenity plot/land for public use and such allotment being admittedly made for commercial use was directly in conflict with the Article 52-A of the KDA Order, 1957 which specifically provided for procedure for seeking of conversion of amenity plot for other use. Admittedly, there is no order whereby use of plot from that of amenity to that of commercial was sanctioned by competent authority in respect of disputed plots. 8. It may further be noted that the allotment of disputed plots was made as back in the year 1976 but despite having possession, the respondent took no steps for raising construction and rather left the disputed plots as they were at the time of allotment and possession that is a bare site. The respondent has given an explanation for not C.A.No.1481 of 2007.doc 6 raising the construction that is the officials did not develop the area nor provided the utility. The fact however remains that for almost 29 years respondent remained inactive and did not use the disputed plots for the purpose for which they were allotted. This fact of non- use of disputed plots by the respondent reflects heavily against him and shows that very purpose of allotment of disputed plots was other-wise than use by the respondent as kiosks. 9. Though, it is contended by the respondent that these disputed plots and other plots were being offered for ten years lease by the CDGK for their commercial exploitation seems to be correct but such venture was scrapped for the reason that the disputed plots stood already allotted to the respondent. We do not know nor do we want to comment upon the venture of CDGK of giving plot on ten years lease for commercial exploitation. Had such venture been executed, the same on the basis that amenity plots cannot be used for commercial exploitation would have definitely been set aside. It may be observed that the residents of Karachi have over time been denied of amenity/land for public use by their illegal occupation/ encroachments and also by public functionaries by making false allotments/transfers, which has clogged the city and denuded it from much needed open spaces for the residents as a breather and a space where they can walkout freely. This facility for the residents of the city of Karachi seems to have been totally vanished. In our view, CDGK so also Government of Sindh should take immediate steps for restoring of amenity/land for public use for which they were exclusively provided in the original master plan of city of Karachi. It is so strange to note that the whole of the beach of the city of Karachi totally looks barren devoid of any plantation or greenery except much C.A.No.1481 of 2007.doc 7 acclaimed Bagh-e-Ibne Qassim, which apparently is not being maintained in a way the park of such magnitude is required to be maintained. 10. Despite the above discussion, it is clear that it was the KDA who has offered the disputed plots to the respondent who through a bidding process has made the highest offer and on acceptance of such offer has got allotment of disputed plots in his favour. He has also paid whole of occupancy value/price of disputed plots and has obtained their possession, which possession letter represented giving of lease of 99 years of disputed plots on receipt of full occupancy value/price. The respondent cannot be squarely blamed for illegal conduct of officials of the KDA in making of allotment of amenity plot/ land for public use to the respondent. The respondent admittedly has paid substantial amount in the shape of whole occupancy value/price of disputed plots and thus cannot be deprived of his funds so paid by him to the KDA now the CDGK. Although the respondent did not acquire any title to the disputed plots but the fact remains that he did pay for disputed plots and such was done by him on illegal and unlawful conduct of officials of then KDA. The Government and its department are bound to act justly and fairly with the citizens of the country and in case of illegal and unlawful conduct of the government and its officials of department any loss is caused to the citizen of this country, same is appropriately be compensated. This is a fundamental rule and also principle of equity. The learned ASC for the respondent during the course of hearing of this appeal has contended that in case the respondent is found not entitled to the disputed plots of the two kiosks, the respondent be paid compensation at the prevailing market rate of the disputed plots and in this respect has C.A.No.1481 of 2007.doc 8 referred to the advertisement published in daily newspaper Dawn dated 16.11.2005 in which offer of public auction of plots by the CDGK on the Clifton Beach for setting up stalls etc on short lease of ten years with a bid price of Rs.15,00,000/- per year. Similar position has been taken by the respondent in his CMA No.581/2015. We have already noted above that the land, on which the disputed plots were allotted to the respondent, was an amenity plot/land for public use and thus not available for being allotted for commercial exploitation. No lease of 99 years was made in favour of the respondent. The respondent himself did not utilize the two plots for almost 29 years though in possession. Although, on the basis of fundamental rules so also principle of equity the respondent is entitled to be compensated but the compensation as is claimed by the respondent is not what in the facts and circumstances of the present case such principle will admit. The offer of plot by public auction by the CDGK in 2005 at the rate of Rs.15,00,000/- per year never materialized and thus it cannot form basis for granting of compensation. Yet the illegality committed by the officials of KDA in dolling out the disputed plots out of the amenity plot/land for public use cannot give advantage to the respondent so as to enrich himself from such illegality. In all fairness, the respondent can well be compensated by directing refund of the amount received from him as the occupancy value/price of land by the appellant alongwith interest/markup at the rate of 18% per annum from the date of the receipt of occupancy value/price of land until it is actually refunded. Consequently, the appeal is partly allowed by setting aside the impugned judgment with directions to the appellants Government of Sindh/CDGK to refund to the respondent all the amount of occupancy value of disputed plots alongwith markup at the rate of 18% per annum from the date of C.A.No.1481 of 2007.doc 9 occupancy amount received till the amount is actually paid to the respondent. CJ. Bench-I ISLAMABAD J. 10.02.2015 NOT APPROVED FOR REPORTING *Hashmi* J. Announced in open Court on 11.08.2015 J.

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, HCJ MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE MUSHIR ALAM MR. JUSTICE MANZOOR AHMAD MALIK CIVIL APPEALS NO. 1491 OF 2013, 63-L & 64-L/14, CIVIL PETITIONS NO. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 736/14, 1155-L/13, 1483-L/14, 1524-L/14, 1535-L/14, 928-L/14, 719-L/14, 1053-L/14, 1112-L/14, 1338-L/14, 1429-L/14, CRIMINAL PETITIONS NO. 74-P/12, 62-Q/13, 30-Q/14, 49-Q/14, CIVIL PETITIONS NO. 1325/14, 1831-L/14, 1727-L/14, 1732-L/14, 1861- L/14, 1883-L/14, 1921-L/14, 1958-L/14, 2116-L/14, 2161-L/14, 2213-L/14, 102-L/15, 249-L/15, 598-L/15, 908-L/15, 1139-L/15, 1197-L/15, 544-L/15, 1431-L/15, 1434-L/15, 937-L/15, 2202-L/15, 2270-L/15, 2276-L/15, 2380-L/15, 2489-L/15, 2585-L/15, 2580- L/15, 2552-L/15, 2715-L/15, 2776-L/15, 2939-L/15, 24-L/16, 1716- L/15, 2150-L/15, 1179-L/15, 1180-L/15, 1923-L/15, CMA. 13/16 IN CP. 2852-L/15, 1966-L2015. (On appeal against the judgments/orders dated 01.10.2013, 3.10.2013, 23.10.2013, 17.6.2010, 16.06.2014, 25.06.2013, 25.01.2012, 03.04.2014, 30.04.2012, 9.10.2013, 27.06.2014, 16.12.2013, 11.02.2014, 27.5.2013, 19.9.2011, 17.03.2015, 10.06.2015, 11.11.2015, 12.5.2014, 30.10.2014, 24.6.2014, 28.10.2014, 29.4.2014, 7.7.2014, 3.7.2014, 19.6.2014, 6.6.2014, 18.8.2014, 10.4.2014, 28.5.2014, 28.10.2014, 19.11.2014, 24.11.2014, 17.10.2014, 07.11.2014, 21.10.2014, 10.12.2014, 11.12.2014, 25.3.2015, 6.4.2015, 29.4.2015, 21.4.2015, 4.2.2015, 6.4.2015, 10.08.2015, 13.7.2015, 15.9.2015, 5.10.2015, 7.9.2015, 14.10.2015, 13.10.2015, 06.10.2015, 14.10.2015, 18.11.2015, 9.11.2015, 29.7.2015, 8.6.2015, 21.04.2015, 21.4.2015, 30.07.2015 and 20.06.2014 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, Lahore High Court, Lahore, Lahore High Court, Multan Bench, Multan, Lahore High Court, Bahawalpur Bench, Bahawalpur, Peshawar High Court, Peshawar, Peshawar High Court, Circuit Bench, Abbottabad, Islamabad High Court, Islamabad and High Court of Balochistan, Quetta, passed in ICA. Nos. 248 of 2010, 764 of 2013, ICA. No. 1081 of 2013 in W. P. No. 7519/13, CP. 1012-L of 2007, in ICA. 597 of 2014 in W. P. No. 25865 of 2013, ICA. 273 of 2013 in W. P. No. 1834 of 2013, in ICA. 500/12, W. P. No. 2141 of 2014, W. P. No. 8962 of 2014, Cr. M. Q. No. 17 of 2011, Crl. Quashment No. 331 if 2013, Crl. Quashment P. No. S-10/2014, ICA. No. 1069 of 2013, W. P. No. 27381 of 2013, W. P. No. 12961 of 2013, ICA. No. 548 of 2011, W. P. No. 7535 of 2015, W. P. No. 2586 of 2015, ICA. 1453 of 2015, W. P. 2582 of 2014, ICA. 375 of 2014 in W. P. No. 12333/2014, ICA. 649 of 2014 in W. P. No. 7740 of 2014, ICA. 650 of 2014 in W. P. No. 6167 of 2014, W. P. No. 26388 of 2014, W. P. No. 689-A of 2013, W. P. No. 19650 of 2014, W. P. No. 19430 of 2014, W. P. No. 26486 of 2013, W. P. No. 15114 of 2014, W. P. No. 18823 of 2014, W. P. No. 9725 of 2014, W. P. No. 12456 of 2014, W. P. No. 12226 of 2014, W. P. No. 25281 of 2013, W. P. No. 25919 of 2014, W. P. No. 24246 of 2014, W. P. No. 8035 of 2014-BWP., W. P. No. 12096 of 2014, W. P. No. 18644 of 2014, W. P. No. 24487 of 2014, W. P. No. 8291 of 2015, ICA. 482 of 2015 in W. P. No. 2587 of 2015, W. P. No. 6380 of 2014, W. P. No. 24714 of 2012, W. P. No. 25441 of 2014, W. P. No. 26288 of 2014, W. P. No. 16360 of 2014, ICA. No. 963 of 2015, ICA. No. 1133 of 2015, W. P. No. 19339 of 2015, W. P. No. 28009 of 2011, W. P. No. 12563 of 2015, ICA. No. 552 of 2015, ICA. No. 541 of 2013, ICA. 1317 of 2015 in W. P. No. 27919 of 2015, W. P. No. 10832 of 2013, W. P. No. 29557 of 2014, ICA. 1481 of 2015, W. P. No. 22491 of 2015, ICA. No. 70 of 2015-BWP., W. Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 2 P. No. 10468 of 2014, W. P. No. 34323 of 2014, ICA. No. 639 of 2015 and Writ Petition No. 1194 of 2014). Younas Abbas. Muhammad Aslam. Asghar Rafiq and another. Abdullah. Mian Naveed Arshad. Hakim Ali. Mian Sajjad. Tanveer Hussain. Co. (R) Nazar Hussain Islam. Ahad Nawaz. Muhamad Javed Afridi. Haji Murad Bakhsh. Shakar Khan and others. Mian Muhammad Usman. Taj Din Malik. Anwar Ali. Hafiz Maqsood Ahmed. Qalab Abbas, etc. Bashir Ahmed Ch., Sabir Hussain. Shehzad Khan. Muhammad Yasin. Naseebullah. Rafiullah and others. Zafar. Kamran Butt. Kamran Butt. Fida Hussain. Muhammad Ramzan. Nazir Ahmad. Muhammad Safdar Shaheen. Syed Afzaal Hussain Kazmi. Ch. Ali Ahmad. Rana Naseem Haider. Nasreen Bibi. Muhammad Ahmad Ramay. Ameen. Shahbaz Sarfraz. Lt. Col. (R) Aqeel Ahmed. Muhammad Anwar. Muhammad Ameer. Saima Firdous. Abdul Rauf. Haji Maqbool Hussain. Uzma Imran. Sardar Shaukat Mahmood. Ghulam Nabi. Muhammad Aslam Hayat. Muhammad Ishaq. Zahid Hussain. Umer Din. Muhammad Iqbal. Muhammad Sana Ullah Khan. Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 3 Ehtasham Ali, etc. Muhammad Afzal. Mst. Malka Bushra Haider. Ch. Zafar Iqbal. Mst. Shehzadi Rani. Muhammad Ali. Muhammad Ali. Shah Nawaz Bhali. Mrs. Maryam Zahid. Mr. Maryam Zahid. Abdul Hameed. …Petitioner/Appellant(s) V E R S U S Additional Sessions Judge, Chakwal and others. Additional Sessions Judge, Lahore and others. Learned Justice of Peace/ASJ, Faisalabad and others. Additional Sessions Judge, Faisalabad, etc. Additional Sessions Judge, Lahore etc. Additional Sessions Judge, Lahore, etc. I. G. Punjab, Lahore, etc. Deputy I. G. Police, Gujranwala, etc. Additional Sessions Judge/Justice of Peace, (East), Ibd and others. Additional Sessions Judge, Sargodha, etc. Muhammad Anwar Khan and others. The State and others. The State and others. Additional Sessions Judge, Lahore, etc. Mian Tauseef, etc. Additional Sessions Judge/Ex-Officio Justice of Peace, Chiniot, etc. ASJ/Ex-Officio Justice of Peace, Sialkot and others. Muhammad Ashraf, etc. Director General, FIA and others. Ex-officio Justice of Peace/ASJ, Faisalabad and others. ASJ/Ex-Officio Justice of Peace, Sialkot and others. ASJ, Lahore and others. Ibrahim Jan and others. District Police Officer, Mansehra and others. Muhammad Nawaz, etc. CCPO, Lahore, etc. CCPO, Lahore, etc. Justice of Peace/ASJ, Karor District Layyah, etc. CCPO, Lahore, etc. Waqas Anwar, etc. Justice of Peace/ASJ, Lahore, etc. ASJ/Justice of Peace, Daska, Sialkot, etc. Justice of Peace Pakpattan, etc. SHO P.S. Chichawatni, District Sahiwal, etc. ASJ, Faisalabad, etc. The Sessions Judge Okara, etc. ASJ, Pakpattan Sharif, etc. ASJ, Justice of Peace, Lahore, etc. Ch. Safdar Bhatti, Justice of Peace, ASJ, Lahore etc. ASJ, Bhakkar, etc. Sub-Divisional Police Officer, Arifwala, Pakpattan Sharif, etc. Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 4 ASJ/Ex-Officio Justice of Peace Pakpattan Sharif, etc. Muhammad Amin, etc. ASJ, Gojra District Toba Tek Singh, etc. SHO PS. Lahore, etc. SDPO/DSP Circle Jaranwala, Faisalabad, etc. ASJ/Ex-officio Justice of Peace Pasrur Sialkot, etc. Justice of Peace/ASJ Shorkot District Jhang, etc. Munir Badar, etc. ASJ/Justice of Peace Jampur, District Rajanpur, etc. Ex-officio Justice of Peace, ASJ, Lahore, etc. Justice of Peace ASJ Samundari, Faisalabad, etc. ASJ/Ex-officio Justice of Peace, Mianwali, etc. Justice of Peace/ASJ, Sialkot etc. SHO, PS City Depalpur, Okara etc. Ex-Officio, Justice of Peace, ASJ, Lahore, etc. Ex-officio, Justice of Peace, ASJ, Gujranwala, etc. ASJ/Justice of Peace Chishtian District Bahawalnagar, etc. The State through P. G. Lahore, etc. ASJ/Justice of Peace, Pindi Bhattian, District Hafiz Abad, etc. ASJ/Ex-officio Justice of Peace, Lahore, etc. ASJ/Ex-officio Justice of Peace, Lahore, etc. ASJ/Ex-officio Justice of Peace, Lahore, etc. Noal Sher, etc. …Respondent(s) ATTENDANCE : C.A. No. 1491/13 For the Appellant(s): Mr. Muhammad Shahid Kamal, ASC For Respondents 4, 7: Sh. Zamir Hussain, Sr. ASC For Respondents 5, 6: Mian Shafaqat JAN, asc C.A. No. 63-L of 2014 For the Appellant(s): Nemo For Respondents 1, 2, 3: N/R C.A. No. 64-L of 2014 For the Appellant(s): Mr. Aziz A. Malik, ASC For Respondents 2-3, 6-9: N/R For Respondents 4-5: Mr. Aftab Ahmad Bajwa, ASC C.P. No. 1945-L of 2011 For the Petitioner(s): Nemo For the Respondents: N/R C.P. No. 933-L of 2013 For the Petitioner(s): Nemo Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 5 For the Respondents: N/R C.P. No. 1840-L of 2013 For the Petitioner(s): Nemo For the Respondents: N/R C.P. No. 372-L of 2014 For the Petitioner: Nemo For the Respondents: N/R C.P. No. 589-L of 2014 For the Petitioner: Nemo For the Respondents: N/R C.P. No. 736 of 2014 For the Petitioner: Nemo For the Respondents: N/R C.P. 1155-L of 2013 For the Petitioner: Nemo For the Respondents: N/R Crl. P. No. 74-P of 2012 For the Petitioner: Nemo For the Respondents: N/R Crl. P. No. 62-Q of 2013 For the Petitioner: Nemo For the Respondents: N/R Crl. P. No. 30-Q of 2014 For the Petitioner: Mr. Zahoorul Haq Chishti, ASC For the Respondents: N/R Crl. P. 1483-L of 2014 For the Petitioner: Nemo. For the Respondents: N/R Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 6 C.P. Nos. 1524 & 1535-L of 2014 For the Petitioners: Nemo For the Respondents: N/R C.P. No. 928-L of 2014 For the Petitioner: Mr. Salim Khan Cheechi, ASC For the Respondents: N/R C.P. No. 719-L of 2014 For the Petitioner: Nemo For the Respondents: N/R C.P. No. 1053-L of 2014 For the Petitioner: Rana Aftab Ahmad Bajwa, ASC For the Respondents: N/R C.P. No. 1112-L of 2014 For the Petitioner: Nemo For the Respondents: N/R C.P. No. 1338-L of 2014 For the Petitioner: Nemo For the Respondents: N/R C.P. No. 1325 of 2014 For the Petitioner: Malik Jawad Khalid, ASC For the Respondents: N/R C.P. 1831-L of 2014 For the Petitioner: Nemo For the Respondents: N/R C.P. Nos. 1727 & 1732-L of 2014 For the Petitioner: Nemo For the Respondents: N/R C.P. No. 1861-L of 2014 For the Petitioner: Nemo Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 7 For the Respondents: N/R C.P. No. 1883-L of 2014 For the Petitioner: Nemo For the Respondents: N/R C.P. No. 1921-L of 2014 For the Petitioner: Nemo For the Respondents: N/R C.P. No. 1958-L of 2014 For the Petitioner: Nemo For the Respondents: N/R C.P. No. 2116-L of 2014 For the Petitioner: Nemo For the Respondents: N/R C.P. No. 2161-L of 2014 For the Petitioner: Nemo For the Respondents: N/R C.P. No. 2213-L of 2014 For the Petitioner: Mr. Zafar Mehmood Chaudhry, ASC For Respondent 2: Mr. Javed A. Khan, ASC C.P. No. 102-L of 2015 For the Petitioner: Syed Nisar Ali Shah, ASC For the Respondents: N/R C.P. No. 598-L of 2015 For the Petitioner: Nemo For the Respondents: N/R C.P. No. 908-L of 2015 For the Petitioner: Sahir Mahmood Bhatti, ASC For Respondent 3: Mr. M. Zahid Rana, ASC Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 8 C.P. No. 1139-L of 2015 For the Petitioner: Mr. Irshad Ahmed Cheema, ASC For the Respondents: N/R C.P. No. 1197-L of 2015 For the Petitioner: Nemo For the Respondents: N/R C.P. No. 544-L of 2015 For the Petitioner: Nemo For the Respondents: N/R C.P. No. 1431-L of 2015 For the Petitioner: Nemo For the Respondents: N/R C.P. No. 1434-L of 2015 For the Petitioner: Mr. Munir Ahmad Bhatti, ASC For the Respondents: N/R C.P. No. 937-L of 2015 For the Petitioner: Miam Muhammad Aslam, ASC For the Respondents: N/R C.P. No. 2202-L of 2015 For the Petitioner: Mr. M. Sohail Dar, ASC For the Respondents: N/R C.P. No. 2270-L of 2015 For the Petitioner: Mrs. Kausar Iqbal Bhatti, ASC For the Respondents: N/R C.P. No. 2276-L of 2015 For the Petitioner: Nemo For the Respondents: N/R C.P. No. 2380-L of 2015 Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 9 For the Petitioner: In person For the Respondents: N/R C.P. No. 2489-L of 2015 For the Petitioner: Mr. Saiful Malook, ASC For the Respondents: N/R C.P. No. 2585-L of 2015 For the Petitioner: Nemo For the Respondents: N/R C.P. No. 2580-L of 2015 For the Petitioner: Nemo For the Respondents: N/R C.P. No. 2552-L of 2015 For the Petitioner: In person For the Respondents: N/R C.P. No. 2715-L of 2015 For the Petitioner: In person For the Respondents: N/R C.P. No. 2776-L of 2015 For the Petitioner: Mr. Salim Khan Chechi, ASC For the Respondents: N/R C.P. No. 2939-L of 2015 For the Petitioner: In person For the Respondents: N/R C.P. No. 24-L of 2016 For the Petitioner: In person For the Respondents: N/R C.P. No. 1716-L of 2015 For the Petitioner: Nemo Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 10 For the Respondents: N/R C.P. No. 2150-L of 2015 For the Petitioner: Nemo For the Respondents: N/R C.P. No. 1179-L of 2015 & C.P. No. 1180-L of 2015 For the Petitioners: Nemo For the Respondents: N/R C.P. No. 1923-L of 2015 For the Petitioner: Nemo For the Respondents: N/R C.M.A. No. 13/16 in C.P. No. 2852-L of 2015 For the Applicant/P: Mr. Ahmad Nawaz Chaudhry, AOR For the Respondents: N/R C.P. No. 1966-L of 2015 For the Petitioner: Mr. Muhammad Sohail Dar, ASC For the Respondents: N/R On Court’s Call: For Province of Punjab: Mr. Razzaq A. Mirza, Addl. AG For Province of Sindh: Mr. Abdul Jabbar Qureshi, Asstt. AG For Province of KPK: Mr. Waqar Ahmed Khan, Addl. AG For Province of Balochistan: Mr. Ayaz Swati, Addl. AG Amicus Curiae: Kh. Haris Ahmed, Sr. ASC Date of Hearing: 12.02.2016 (Judgment Reserved) ************************** Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 11 J U D G M E N T EJAZ AFZAL KHAN, J.- Though the appellants and the petitioners in many cases voiced their individual grievances against the orders directing or refusing the registration of cases but appellants in Civil Appeal No. 491 of 2013 also questioned the vires of Section 22-A in general and 22-A(6) of the Cr.P.C. in particular. This Court after hearing the learned ASCs for the parties crystallized the formulations as under :- “3. We have gone through the leave granting order dated 13.12.2013, wherein the afore-referred questions have been adverted to for consideration, however, while hearing the appellant’s learned counsel, we find that certain issues relatable to the vires of Section 22-A Cr.P.C. and the manner it is being used, require consideration. In this view of the matter, we are persuaded to direct the learned counsel for the parties to address the Court, inter alia, on the following issues :- a) Whether Section 22-A Cr.P.C. is ultra vires of the Constitution inasmuch as it confers Executive powers to a Judicial Officer? and b) Whether its alleged misuse is not in consonance with the canons of expeditious justice? and c) Whether the exercise of power under Section 22-A Cr.P.C. amounts to interference in the investigative domain of police, which is violative of this Court’s judgment in Muhammad Bashir Vs. Station House Officer, Okara (PLD 2007 SC 539) and Imtiaz Ahmad. Vs. Government of Pakistan (1994 SCMR 2142)? 2. Notices were issued to the Advocates General of the Provinces whereas Kh. Haris Ahmed and Mr. Farogh Naseem were appointed as amicus curiae. This case was heard on 20.11.2014 by Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 12 a Bench of this Court, which ordered it to be heard by a Larger Bench by observing as under :- “2. We have heard the learned amicus curiae. Both the learned counsel have submitted that the powers exercisable under Section 22-A (6) read with Section 25 of the Cr.P.C. are quasi judicial in nature and therefore do not violate the provision of Article 175(3) of the Constitution; and that if these powers are declared to be executive or administrative in nature, the same would not be in consonance with the provision of Article 175(3) of the Constitution. During the course of arguments two judgments were brought to our notice; one by the Lahore High Court authored by Hon’ble Justice Asif Saeed Khan Khosa, as Judge of that Court, which was reaffirmed by a three member bench of this Court in the case of Muhammad Ali. Vs. Additional I. G. Faisalabad and others (PLD 2014 SC 753) declaring that the said powers are administrative and executive in nature. Since the said judgment has been handed down by a three member bench, it would be appropriate that this case be heard by a larger bench, in order to determine whether the powers under Section 22-A(6) of Cr.P.C. are quasi judicial in nature, and if not, would it violate the provision of Article 175(3) of the Constitution.” 3. The learned Advocates Supreme Court appearing in the appeals as well as civil petitions and criminal petitions addressed arguments in support of and against the formulations. The main theme and thrust of the arguments addressed in support of the formulations was that the Ex-officio Justice of Peace while exercising powers under Section 22-A (6) Cr.P.C. interferes with investigation, delays dispensation of justice, and thereby abuses the process of the Court which is violative of the dicta rendered in the cases of Muhammad Bashir. Vs. Station House Officer, Okara Cantt. and others (PLD 2007 SC 539) and Brig. (Retd) Imtiaz Ahmad. Vs. Government of Pakistan through Secretary, Interior Division, Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 13 Islamabad and 2 others (1994 SCMR 2142). Some of the ASCs also went to the extent of calling this provision as ultra vires in the sense that these powers being executive and administrative in nature militate against the concept of independence of judiciary and its separation from the executive as enshrined in Article 175 of the Constitution of the Islamic Republic of Pakistan. 4. Sheikh Zamir Hussain, learned ASC appearing on behalf of respondents Nos. 4 and 7 in C. A. No. 1491 of 2013 contended that the people could live and lump up with the powers of the Ex- officio Justice of Peace under Section 22-A(6) Cr.P.C. but not with their abuse and misuse especially when he assumes the role of investigator, prosecutor and the Court before the case is sent thereto or any other Court for trial and thereby defeats the purpose this provision was enacted for. 5. Mr. Saiful Malook, learned ASC appearing on behalf of the petitioner in C. P. No. 2489-L of 2015 by highlighting the excesses committed by the Ex-officio Justice of Peace in exercise of his powers, vehemently pleaded for prescribing parameters in this behalf lest it does more harm than good. 6. Mr. Muhammad Shahid Kamal, learned ASC appearing on behalf of the appellant in C. A. No. 1491 of 2013 contended that enactment of Section 22-A, 22-B and 25 of the Criminal Procedure Code is well intentioned, if their efficacy in facilitating the cause of justice is looked at and that there may be deviations here and there, but they can well be corrected through judicial review. 7. The learned Advocates General of the respective Provinces contended that these provisions cannot be treated as heal-all inasmuch as their side effects have added to the backlog Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 14 which is already mountain-high as was also observed by this Court in the case of Muhammad Bashir. Vs. Station House Officer, Okara Cantt. and others (supra) . 8. Kh. Haris Ahmed, learned ASC appearing as amicus curiae having cited a good number of judgments sought to canvass at the bar that interference with investigation at any level has not been approved of by this Court unless of course it is malafide and without jurisdiction. He next contended that even the powers conferred on the High Court under Section 561-A of Cr.P.C. cannot be used to impede or hamper the investigation, but to prevent the abuse of the process of the Court. The learned ASC to support his point of view referred to the cases of Muhammad Bashir. Vs. Station House Officer, Okara Cantt. and others, Brig. (Retd) Imtiaz Ahmad. Vs. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others (supra), Emperor. Vs. Khawaja Nazir Ahmad (AIR 1945 PC 18), Shahnaz Begum. Vs. The Hon’ble Judges of the High Court of Sindh and Baluchistan and another (PLD 1971 SC 677) and Ghulam Mohammad. Vs. Muzzamil Khan (PLD 1967 SC 317). The learned ASC went on to argue that what cannot be permitted in exercise of jurisdiction under Article 199 of the Constitution or 561-A of Cr.P.C. cannot be permitted at the level of the Ex-officio Justice of Peace. According to the learned ASC, the view taken in the judgments cited above was reaffirmed in the cases of Saeed Hussain Shah. Vs. The State (1996 SCMR 504), Raja Rustam Ali Khan. Vs. Muhammad Hanif and 6 others (1997 SCMR 2008), Muhammad Saeed Azhar. Vs. Martial Law Administrator, Punjab and others (1979 SCMR 484), Muhammad Latif, ASI, Police Station Sadar, Sheikhupura. Vs. Sharifan Bibi and Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 15 another (1998 SCMR 666), Mazhar Naeem Qureshi. Vs. The State (1999 SCMR 828), Nasrullah Khan. Vs. Manzoor Hussain and others (2004 SCMR 885), Ajmeel Khan. Vs. Abdur Rahim and others (PLD 2009 SC 102), Hayatullah Khan and another. Vs. Muhammad Khan and others (2011 SCMR 1354) and S. N. Sharma. Vs. Bipen Kumar Tiwari and others (AIR 1970 SC 786). 9. We have gone through the record carefully and considered the submissions of the learned ASCs for the parties, the learned Advocates General as well as the learned amicus curiae. 10. Law is undoubtedly a set of commands of the sovereign. It can endure and stay efficacious if it is not abstract and socially unrelated. It becomes all the more enduring and efficacious if it pulsates from the soil and reflects indigenous conditions around. A law thus evolved not only caters for what people need for their peaceful co-existence but also endures till the time the conditions around change. On the contrary, a law which is a patchwork of imported patches can neither cater for the legitimate needs of the people nor stay efficacious because of its feeble basis and frequent violation. Before we examine these provisions in this background and in the light of the arguments addressed at the bar, it is worthwhile to refer to the provisions which read as under :- “22-A. Powers of Justice of the Peace.--(1) A Justice of the Peace for any local area shall, for the purposes of making an arrest, have within such area all the powers of a Police Officer referred to in section 54 and an officer in-charge of a police-station referred to in section 55. (2) A Justice of the Peace making an arrest in exercise of any powers under subsection (1) shall, forthwith, take or cause to be taken the person arrested before the officer in-charge of the nearest police-station and furnish such officer with a report as Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 16 to the circumstances of the arrest and such officer shall thereupon re-arrest the person. (3) A Justice of the Peace for any local area shall have powers, within such area, to call upon any member of the police force on duty to aid him: (a) in taking or preventing the escape of any person who has participated in the commission of any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having so participated; and (b) in the prevention of crime in general and, in particular, in the prevention of a breach of the peace or a disturbance of the public tranquility. (4) Where a member of the police force on duty has been called upon to render aid under subsection (3), such call shall be deemed to have been made by a competent authority. (5) A Justice of the Peace for any local area may, in accordance with such rules as may be made by the Provincial Government: (a) issue a certificate as to the identity of any person residing within such area, or (b) verify any document brought before him by any such person, or (c) attest any such document required by or under any law for the time being in force to be attested by a Magistrate, and until the contrary is proved, any certificate so issued shall be presumed to be correct and any document so verified shall be deemed to be duly verified, and any document so attested shall be deemed to have been as fully attested as if he had been a Magistrate. [(6) An ex-officio Justice of the Peace may issue appropriate directions to the police authorities concerned on a complaint regarding- (i) non-registration of a criminal case; (ii) transfer of investigation from one police officer to another; and (iii) neglect, failure or excess committed by a police authority in relation to its functions and duties.] Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 17 22-B. Duties of Justices of the Peace.-- Subject to such rules as may be made by the Provincial Government, every Justice of the Peace for any local area shall— (a) on receipt of information of the occurrence of any incident involving a breach of the peace, or of the commission of any offence within such local area, forthwith make inquiries into the matter and report in writing the result of his inquiries to the nearest Magistrate and to officer in charge of the nearest police-station. (b) if the offence referred to in clause (a) is a cognizable offence, also prevent the removal of any thing from, or the interference in any way with, the place of occurrence of the offence; (c) when so required in writing by a police- officer making an investigation under Chapter XIV in respect of any offence committed within such local area. (i) render all assistance to the police- officer in making such an investigation. (ii) record any statement made under expectation of death by a person in respect of whom a crime is believed to have been committed'.] 25. Ex-officio Justice of the Peace.—By virtue of their respective offices, the Sessions Judges and on nomination by them, the Additional Sessions Judges, are Justices of the Peace within and for whole of the District of the Province in which they are serving”. 11. The duties, the Justice of Peace performs, are executive, administrative, preventive and ministerial as is evident from sub-sections 1, 2, 3, 4 and 5 of 22-A and 22-B of the Cr.P.C. Such duties have not been a subject matter of controversy nor have they ever been caviled at by anybody. Controversy emerged with the insertion of sub-section 6 in Section 22-A and Section 25 of the Cr.P.C. when Sessions Judges and on nomination by them the Additional Sessions Judges became the Ex-officio Justices of Peace. The functions, the Ex-officio Justice of Peace performs, are not executive, administrative or ministerial inasmuch as he does not carry out, manage or deal with things mechanically. His functions as Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 18 described in Clause (i), (ii) and (iii) of sub-section 6 of Section 22-A Cr.P.C., are quasi-judicial as he entertains applications, examines the record, hears the parties, passes orders and issues directions with due application of mind. Every lis before him demands discretion and judgment. Functions so performed cannot be termed as executive, administrative or ministerial on any account. We thus don’t agree with the ratio of the judgments rendered in the cases of Khizar Hayat and others. Vs. Inspector General of Police (Punjab), Lahore and others (PLD 2005 Lhr. 470) and Muhammad Ali. Vs. Additional I. G. (PLD 2015 SC 753) inasmuch as it holds that the functions performed by the Ex-officio Justice of Peace are executive, administrative or ministerial. 12. Now we are to see whether the insertion of this provision has advanced and hastened or obstructed and delayed dispensation of justice. A brief look into the past and its comparison with the present would answer the question. In the past if a person aggrieved went to report the commission of a cognizable case his report was not registered. If he had means he could file a petition for issuance of an appropriate writ in the respective High Court. By the time his petition matured for being heard and decided in his favour, a great deal of evidence was either lost or destroyed. The relief so granted was almost equal to the relief declined barring exceptions, which were not more than a few. With the insertion of sub-section 6, an aggrieved person could get in time at his doorstep, what he could not get despite approaching the High Court. As against that, grievance of a person having no means and resources went unattended and un-redressed altogether. Wealthy, well off and well connected people exploited this situation. They Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 19 committed the crime and yet went scot-free. But ever since the day the Sessions Judges and on nomination by them the Additional Sessions Judges became the Ex-officio Justices of Peace, no rich and well off person could break the law with impunity or obstruct the person oppressed and assaulted from seeking remedy at his doorstep. If the SHO of a Police Station, owing to the influence and affluence of any, refused to register a case, resort could be had to the Ex-officio Justice of Peace for the issuance of an appropriate order or direction by moving a simple application. Aggrieved persons, who could not afford the luxury of engaging a lawyer in the past for filing a writ petition in a High Court to get the desired relief, could seek an order or direction from the Ex-officio Justice of Peace without spending much. He could complain against the neglect, failure or excess committed by the Police Authorities in relation to its functions and duties which in the past was no less than living in Rome and fighting with the Pope. 13. Transfer of investigation from one police officer to another was, no doubt, in vogue but it was done only at the bidding of wealthy and well off people. A poor man, whose entry in the well guarded offices of the high-ranking police officers was well nigh impossible, could never dream of getting such relief even in the wildest of his dreams. Article 18(6) of the Police Order also provides a remedy for change of investigation but it, in a set up where the police do not have operational independence, is illusory and inadequate. It is more so where even the high-ranking police officers are posted and transferred with the intervention of the class wielding influence inside and outside the lounges of power. In this state of despair, a legislation establishing equality before the law Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 20 and breaking the idols of influence and affluence was desperately needed. The legislature rose to the occasion, enacted sub-section 6 of Sections 22-A and 25 of the Cr.P.C. and enabled the poor and the downtrodden to see eye to eye with those who infringed their rights with impunity in the past. We need not discuss how the Justice of the Peace acts or acted in the United Kingdom, the United States of America or the Union of India. We are to see whether this insertion, giving powers to the Ex-officio Justice of Peace, has harmed the people by and large or empowered them, who on account of economic constraints and compulsions resigned to their unhappy lot. Yes, it is not heal-all as was contended by one of the learned Advocates General because its side effects have added to the backlog which is already mountain-high in the District Courts as well as the High Courts. But these side effects like those of antibiotics have to be borne by the patients for their rapid recovery. Needless to say that someone has to travel a mile extra to restore balance to the society. 14. The argument that the people could live and lump up with the powers of the Ex-officio Justice of Peace under Section 22- A(6) Cr.P.C. but not with their abuse and misuse especially when he assumes the role of investigator, prosecutor and the Court before the case is sent thereto or any other Court for trial and thereby defeats the purpose this provision was enacted for, is misconceived when the orders passed, directions issued and actions taken by the Justice of Peace in excess of his powers being justiciable can well be quashed through judicial review. 15. Granted that jurisdiction to issue a writ is traditionally a high prerogative jurisdiction of a High Court dating back to Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 21 antiquity is now recognized by the Constitution, as has been held in the case of Khizar Hayat and others. Vs. Inspector General of Police (Punjab), Lahore and others (supra), but such jurisdiction has now been conferred on the Ex-officio Justices of Peace, as the power to issue direction in the nature of habeas corpus has been conferred on the Sessions Judges and Additional Sessions Judges under Section 491(1-A) of the Cr.P.C. The rationale behind conferment of such powers on the Ex-officio Justices of Peace under sub-section 6 of Section 22-A and on the Sessions Judges as well as Additional Sessions Judges under Section 491(1-A) of the Cr.P.C. was to provide the remedy to an aggrieved person at his doorstep. Exercise of such powers, by no stretch of imagination, interferes with investigation or delays dispensation of justice. 16. The argument pleading for prescribing parameters for exercising such powers by the Ex-officio Justices of Peace may have some substance, but where the parameters laid down for the High Courts are equally applicable to the Ex-officio Justice of Peace exercising almost similar powers, another effort in this behalf would be absolutely unnecessary. What are the parameters in this behalf and how far the exercise of such powers is complementary to the functions of the police are the questions which have been elaborately dealt with in a number of cases. In the case of Emperor. Vs. Khawaja Nazir Ahmad (AIR 1945 PC 18), the Privy Council by prescribing the parameters and highlighting the complimentary nature of the functions of the judiciary and the police held as under:- Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 22 “In their Lordship’s opinion however, the more serious aspect the case is to be found in the resultant interference by the Court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under S. 491, Criminal P. C., to give directions in the nature of habeas corpus. In such a case as the present, however, the Court’s functions begin when a charge is preferred before it and not until then. It has sometimes been thought that S. 561-A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act. No doubt, if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed, the police would have no authority to undertake an investigation and for this reason Newsam, J. may well have decided rightly in AIR 1938 Mad. 129. But that is not this case”. Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 23 17. In the case of Ghulam Mohammad. Vs. Muzzamil Khan (PLD 1967 SC 317), this Court after examining the ratio of various judgments on a similar issue held as under :- “The inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be utilized as to interrupt or divert the procedural statute. The High Court, as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent Court has after examining the evidence adduced before it, come to the view that a prime facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence. This the High Court has not found in the present case but has merely proceeded on an erroneous conception that in a case where a complaint has been filed the police has no jurisdiction to investigate into any other offence which comes to its notice in the course of the investigation of the complaint, particularly, if the offence disclosed is of a non-cognizable nature. The High Court itself has referred to a Full Bench authority of the Madras High Court where a contrary view was taken but has not quoted any other authority in support of its own view. We are in agreement with the views expressed by the Madras High Court for, we can see no legal bar to the police submitting a challan in respect of offences other than those mentioned in the First Information Report, if the same should come to its notice during the course of investigation on the basis of complaint except in the cases mentioned in Sections 196 to 199, Cr.P.C. Section 190(1)(b) of the Code of Criminal Procedure clearly gives jurisdiction to the Magistrate mentioned therein to take cognizance of an offence on the basis of a police report whether the offence be cognizable or non-cognizable. In the present case, the Magistrate was an Additional District Magistrate and one of the offences in Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 24 respect of which the challan was submitted was under section 408, P.P.C., which was cognizable. Thus even the obstacle posed by section 155(2), Cr.P.C., did not stand in the way. The challan submitted by the police was, therefore, lawfully submitted an legally enquired into”. 18. In the case of Shahnaz Begum. Vs. The Hon’ble Judges of the High Court of Sindh and Baluchistan and another (PLD 1971 SC 677) this Court held as under :- “If an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of the investigating agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code. If this be the position with regard to the quashing of an investigation we have no manner of doubt that section 561-A of the Cr. P.C. does not give any power to transfer an investigation as claimed by the learned Advocate General of Sindh. Section 561-A of the Criminal Procedure Code runs as follows:- “561-A. Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice” It will be observed that the power given thereby can be invoked to give effect to any order under the Code to prevent an abuse of the process of any Court or otherwise to secure the ends of justice. The ends of justice necessarily means justice as administered by the Courts and not justice in the abstract sense or justice administered by agencies other than Courts. The words “otherwise to secure the ends of justice”, have to be read along with the earlier objects mentioned in this section and must have some co-relation with them and it is in this sense that this Court in the case of Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 25 M. S. Khawaja V. The State (PLD 1965 SC 287) opined that the ends to secure which the inherent power may be invoked “have reference to the purposes which the judicial process is intended to secure, and it is difficult to include actions of investigating agencies within the scope of judicial process.” 19. In the case of Brig. (Retd) Imtiaz Ahmad. Vs. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others (1994 SCMR 2142) this Court while reiterating the earlier view held as under :- “The power under Article 199 of the Constitution is the power of judicial review, that power “is a great weapon in the hands of Judges, but the Judges must observe the Constitutional limits set by our parliamentary system on their exercise of this beneficial power, namely, the separation of powers between the Parliament, the Executive and the Courts”. (Lord Scarman in Nottinghamshire C.C. v. Secretary of State (1986) (All ER 199, 204). Judicial review must, therefore, remain strictly judicial and in its exercise, Judges must take care not to intrude upon the domain of the other branches of Government. As was succinctly put by Hamoodur Rahman, J. (as he then was) in Mir Abdul Baqi Baluch v. The Government of Pakistan (PLD 1968 SC 313, 324), under a Constitutional system which provides for judicial review of executive actions :- “It is, in my opinion, a fallacy to think that such a judicial review must be in the nature of an appeal against the decision of the executive authority. It is not the purpose of judicial authority reviewing executive actions to sit on appear over the executive or to substitute the discretion of the Court for that of the administrative agency”. While dealing with transfer of investigation from one police officer to another, this Court applied the same principles by holding that the Investigating Authorities do not have an unfettered Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 26 authority of running investigation according to their whim and caprice. They can be pushed back to their allotted turf if and when they overstep it. In the case of Anwar Ahmed Khan. Vs. The State (1996 SCMR 24), this Court held that the High Court in exercise of its jurisdiction was competent to pass necessary orders where investigation was malafide or without jurisdiction to ensure justice and fair play. It was also held in the case of Muhammad Latif, ASI, Police Station Sadar, Sheikhupura. Vs. Sharifan Bibi and another (supra) that the High Court in exercise of its constitutional jurisdiction could pass appropriate orders where investigation is malafide. In the case of Nasrullah Khan. Vs. Manzoor Hussain and others (supra) this Court declined to interfere with the order of the High Court directing entrustment of the investigation of the case to some responsible officer of repute. In the case of Col. Shah Sadiq. Vs. Muhammad Ashiq and others (2006 SCMR 276) this Court after referring to a string of judgments of this Court, Privy Council and Indian Supreme Court reiterated the same principle. The same view was also reaffirmed in the cases of Saeed Hussain Shah. Vs. The State (1996 SCMR 504), Raja Rustam Ali Khan. Vs. Muhammad Hanif and 6 others (1997 SCMR 2008), Muhammad Saeed Azhar. Vs. Martial Law Administrator, Punjab and others (1979 SCMR 484), Mazhar Naeem Qureshi. Vs. The State (1999 SCMR 828), Ajmeel Khan. Vs. Abdur Rahim and others (PLD 2009 SC 102), Hayatullah Khan and another. Vs. Muhammad Khan and others (2011 SCMR 1354), Muhammad Ali. Vs. Additional I. G. (supra) and S. N. Sharma. Vs. Bipen Kumar Tiwari and others (AIR 1970 SC 786). 20. Next comes the vires of the provisions contained in sub- section 6 of Section 22-A and Section 25 of the Cr.P.C. A provision of Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 27 law can be declared ultra vires if it is violative of the provisions of the Constitution which guarantee fundamental rights, independence of judiciary or its separation from the executive. An examination and empirical verification of these provisions will show that they do not infringe any of the fundamental rights guaranteed by the Constitution. They on the contrary, not only facilitate their enforcement but also guard against their infringement by providing expeditious and inexpensive justice to the people at their doorstep. It does not even remotely impinge upon the independence of judiciary nor does it militate against the concept of its separation from the executive. When the Ex-officio Justice of Peace passes orders, issues directions, or takes actions under the aegis of judiciary rather than the executive, he instead of going under the thumb of the executive, in fact, brings the executive under the thumb of law. We, therefore, without a moment’s hesitation hold that these provisions cannot be declared ultra vires on either of the criteria mentioned above. Their vires even on the yardstick of the legislative competence cannot be questioned when we don’t find any defect in the legislative competence nor has it been imputed thereto by any of the parties before us. 21. Having thus considered, we hold that the functions performed by the Ex-officio Justice of Peace being quasi judicial in nature cannot be termed as executive, administrative or ministerial; that such functions being complementary to those of the police do not amount to interference in the investigative domain of the latter and thus cannot be held to be violative of the judgments of this Court rendered in the cases of Muhammad Bashir. Vs. Station House Officer, Okara Cantt. and others and Brig. (Retd) Imtiaz Ahmad. Vs. Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 28 Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others (supra) and that insertion of sub-section 6 of Section 22-A and 25 of the Cr.P.C. through the Code of Criminal Procedure (3rd Amendment Ordinance) CXXXI of 2002 is not ultra vires by any attribute. In this view of the matter, we direct that the cases be listed before the benches for decision in accordance with law. We, while parting with the judgment appreciate the enlightened assistance rendered by Khawaja Haris Ahmad, learned Sr. ASC who despite his heavy pre-occupations honoured the words of this Court. Chief Justice Judge Judge Judge Judge Announced in open Court at Islamabad on ________________ Judge ‘Not approved for reporting’ M. Azhar Malik Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 29 Manzoor Ahmad Malik, J.- I have had the privilege of going through the erudite judgment rendered by my learned brother Hon’ble Mr. Justice Ejaz Afzal Khan. While agreeing with the conclusion drawn by his lordship, I am adding following note to attend to certain aspects which are germane to the lis. 2. The past experience of around 14 years (since the insertion of these provisions into the Code of Criminal Procedure) would unmistakeably reveal that these provisions especially Section 22-A of the Code of Criminal Procedure, though beneficial and advantageous to the public at large, yet in myriad cases, it has been misused and abused. 3. Once a false criminal case is registered against an individual, it becomes exceedingly difficult for him/her to get rid of it. The time and money which is spent on acquiring a clean chit by way of cancellation of the case or acquittal is not hard to fathom. There is no denying the fact that at times false and frivolous cases are got registered just to humble and harass the opposite party. In such a milieu, powers given to an ex-officio Justice of the Peace under sub-section (6) of Section 22-A, Code of Criminal Procedure, to issue appropriate directions on a complaint filed by an aggrieved person for registration of a criminal case (Clause-i) and for transfer of investigation from one police officer to another (Clause-ii) though efficacious and expeditious besides being at the doorstep, but at the same time, these provisions should not be unbridled or open-ended. These provisions must be defined, structured and its contour delineated to obviate misuse by influential and unscrupulous elements. Therefore:- (i) The ex-officio Justice of the Peace, before issuance of a direction on a complaint for the non-registration of a criminal case under sub-section (6)(i) of section 22-A, Code of Criminal Procedure must satisfy himself that sufficient Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 30 material is available on the record, such as application to the concerned SHO for registration of the criminal case and on his refusal or reluctance, complaint to the higher police officers i.e. DPO, RPO etc., to show that the aggrieved person, before invoking the powers of ex-officio Justice of the Peace, had recourse to the high ups in the police hierarchy. (ii) So far as transfer of investigation of a criminal case from one police officer to another police officer is concerned, a complete mechanism has been provided in the Police Order, 2002. However, Clause (ii) of Sub-section (6) of Section 22- A, Code of Criminal Procedure has given power to the ex- officio Justice of the Peace to issue appropriate direction to the concerned police authorities for the transfer of investigation of a case from one police officer to another, but it does not prescribe a criterion or mechanism in so many words as to what might be the standard or what reasons should prevail with the ex-officio Justice of the Peace while issuing such a direction. To issue a direction regarding transfer of investigation by ex-officio Justice of the Peace without taking into consideration the attending circumstances of the case may be counter-productive and may defeat the purpose of the mechanism as provided in the Police Order, 2002, thus may result into unnecessary interference with the working of an agency. Therefore, it would be appropriate for the ex-officio Justice of the Peace, before issuance of any direction regarding the change of investigation, to satisfy himself from the available record that the grievance of the Civil Appeals No. 1491 of 2013, 63-L & 64-L/14, Civil Petitions No. 1945-L/11, 933-L, 1840-L/13, 372-L, 589-L, 737/14, 1155-L/13, etc. 31 aggrieved person (who has filed the application for this purpose) has not been redressed by the Police Officers/authorities as provided in the Police Order, 2002. (MANZOOR AHMAD MALIK) JUDGE Islamabad, Approved for Reporting K.Anees

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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 SAYYED MAZAHAR ALT AKBAR NAQVI S Civil Appeal NO-1496 of 2019 Against judgment dated 05.10.2018 of Federal Service Tribunal, Islamabad, passed in Appeal No.256(R)CS of 2016. M/o Finance through Secretary, etc Versus Appellant(s) Syed Afroz Akhtar Rizvi & others Respondent(s) For the Appellant(s): Mr. Sohail Mehmood, AddI.AGP Khan Hafeez, JS, Fin. Div Abdul Ghaffar, SO, Fin. Div Sajid Javed, Legal Assistant, Fin. Div For the Respondent(s) Mr. M. Ramzan Khan, ASC Syed B. H. Shah, AOR a/w Respondent No.1 in person. Date of Hearing: 12.07.2021 ORDER IJAZ UL AHSAN, J.- The appellant is aggrieved of a judgment of the Federal Service Tribunal, Islamabad ("the Tribunal") dated 05.10.2018. Through the impugned judgment, while accepting a Service Appeal bearing No.256(R) CS of 2016 filed by Respondent No.1 (Syed Afroz Akhtar Rizvi) the Tribunal directed that his last drawn pay as contract employee would stand protected on his regularization/ appointment on regular basis and the Appellant should provide Civil Appeal No. 1496 o[2019 2 consequential/ retirement benefits to him within a period of three months. 2. Briefly stated the facts necessary for decision of this Appeal are that Respondent No.1 was appointed as Data Entry Operator (BS-12) in National Educational Information Management System ("NEIMS") on 11.04.1992 on contractual basis. Subsequently, the employees of NEIMS were transferred to the Academy of Educational Planning & Management ("AEPM") and were regularized with effect from 01,07.2008. After regularization, the Respondent rendered services in AEPM and retired 8 years later. He submitted an application requesting that he may be regularized with effect from his initial appointment and his services from 11.04.1992 to 30.06.2008 be counted towards determination/ fixation of his pensionary benefits. Such application was rejected by the Appellant. This prompted the Respondent to file an appeal which was allowed vide judgment dated 01,02.2017. The said judgment was challenged before this Court through CPLA No.1255 of 2017 which was converted into an appeal and allowed vide order dated 22.03.2018. The matter was remanded to the Tribunal for decision afresh. In post remand proceedings, the appeal of the Respondent was again allowed, vide impugned judgment dated 05.10.2018. CiuliAppeal No. 1 496 of 2019 3 3. Leave to appeal was granted by this Court on 29.08.20 18 inter alia in the following terms:- "Submits that the impugned judgment of the learned tribunal dated 05.10.2018 fails to apply the principle laid down in Chairman, Pakistan Railway, Government of Pakistan v. Shah Jahan Shah (PLD 2016 SC 534) and reproduced in the impugned judgment. The period of temporary service exceeding 5 years can be added towards the government service pension if he is otherwise entitled to pension. This principle contained in article 371-A of the Civil Service Regulations (CSR) has been affirmed in the aforenoted judgment. On the other hand, the respondent fails to satisfy the condition of article 371-A of CSR and is therefore not entitled to receive pension. Y et the Tribunal has awarded him that relief: 4. The learned Additional Attorney General for Pakistan appearing for the Appellant submits that the Respondent was appointed purely on temporary basis in NEIMS, his services were regularized on 18.08.2008 in AEPM which in essence was a fresh appointment. His application for grant of pensionary benefits was disallowed on the ground that he did not meet the criteria of qualifying service of 10 years. He maintains that the period from 1992 to 2008 cannot be counted for the purpose of determining qualifying service in view of the fact that qualifying service has to be performed in a Government Department and at least for a period of ten years. He further maintains that the Tribunal has misinterpreted and misapplied the provisions of CSR Ch,iI Appeal No. 1496 o[2019 4 352, 361 and 365 and has come to the conclusions which are patently erroneous. He relies on a judgment of this Court reported as Chairman, Pakistan Railway, Government of Pakistan v. Shah Jahan Shah (PLD 2016 Sc 534) and submits that the Tribunal has totally misinterpreted the same. He further maintains that the Finance Division has issued policy guidelines vide Office Memorandum No.4(2)R-2/ 2014-237 dated 07.04.2015 for protection of pay of gazetted contract employees on their regularization/ employment on regular basis. As per para 1(v) of the said OM, the services rendered on contract basis do not qualify for pension/ gratuity. He further submits that benefit of pay protection is admissible to the Respondent but pensionary benefits are not admissible for the contract period. However, pensionary benefits for regular service from the date of regularization are admissible to regular employees under the Rules. S. The learned ASC for Respondent No.1 has defended the impugned judgment of the Tribunal. He maintains that admittedly the Respondent has rendered uninterrupted and continuous contractual service in NEIMS from 1992 to 2008. That being so, the said period which comes to around 15 years is liable to be counted towards his pensionary benefits and denial by the Civil Appeod No. 1496 of 2019 5 Department to grant him the benefit of pension was patently illegal as had correctly been held so by the Tribunal. He further submits that the correct interpretation of CSR 352, 361 and 365 is that if a contractual employee who is subsequently regularized has rendered, in aggregate, service in excess of the qualifying service as defined in the Civil Service Rules, such employee is entitled to pensionary benefits. He also relies on the judgment of this Court in the case of Shah Jahan Shah (supra). 6. We have heard the learned Additional Attorney General Pakistan as well as learned ASC for Respondent No.1 and have examined the relevant provisions of Civil Service Regulations as interpreted by this Court from time to time. An analysis of the said provisions and judgments of this Court more specifically a relatively recent judgment of this Court in Shah Jahan Shah's case shows that the following general principles apply to employees who have worked against contractual posts which were subsequently converted into regular posts for the purpose of grant and calculation of pension: I. an employee who was employed on contractual basis and is subsequently regularized may be entitled to pensionary benefits provided; Civil A ppeal No. 1496 of 2019 i) he is eligible for pension having served for the qualifying period (10 years) as a II regular employee. ii) for the purpose of calculating pensionary benefits his service as a contractual employee can be factored in to provide him any financial benefit that may be due to him. iii) the period spent in employment as a contractual employee and as a regular employee cannot be aggregated in order to determine his eligibility for entitlement to pension. iv) eligibility to receive pension is directly related to rendering qualifying service as a regular employee. Unless an employee has performed services in a regular appointment for the duration of the qualifying period (10 years), he is not entitled to receive pension. 7. In case, an employee has served a Government Department for the duration of the period qualifying him to receive pension, the period spent as a contractual employee may be added to his regular qualifying service only and only for the purpose of calculating his pension and for no other purpose. The provisions of Article 371-A Ciull Appeal No, 1496 o[2019 7 of CSR start with a non obstante clause which means that the said Article does not relate to the question entitlement or eligibility to receive pension. It is clearly and obviously restricted to counting the period of a minimum of five years which has been rendered by a temporary contractual employee to be taken into account with the object of calculating the quantum of his pension and not more. The non obstante clause in Article 371-A of CSR does not allow those who do not fulfil the requisite conditions for qualifying for pension to bypass such conditions and add up regular and contractual periods of employment for the purpose of meeting the eligibility criterion of ten years of service. Such an interpretation would create absurd situations and would render other provisions and Articles of CSR redundant, unnecessary and surplus. We are therefore in no manner of doubt that Article 371 of CSR does not allow Government Servants rendering temporary service in a temporary establishment for more than 5 years to be entitled for grant of pension rather such period can be counted towards calculation of pension only if otherwise entitled to pension by meeting the criteria of qualifying service. 8. It is not disputed that the Respondent rendered continuous service from 1992 to 2008 as Data Chill A ppeal No. 1496 of 2019 8 + I Entry Operator in NIEMS. It is also not disputed that he was regularized in 2008 and retired in 2016 before meeting the criteria of qualifying service. That being so, the benefit of Article 371-A of CSR was not available to him as he did not qualify for the pensionary benefits which qualification is a necessary pre-requisite for grant of pension. 9. It may also be pointed out that the earlier view taken by a three member Bench of this Court in the case of Mir Ahmad Khan v. Secretary to Government & others (1997 SCMR 1477) was declared per incuriam in a five member judgment of this Court rendered in Shah Jahan Shah's case ibid. As such, the view consistently taken by this Court in a situation where the services of a contractual employee are converted into regular employment is that although the period spent in contractual employment subject to a minimum of five years can be included in calculating pensionary benefits but only and only in a situation where the employee is otherwise entitled/ eligible to receive pension subject to having rendered qualifying service (10 years) in permanent employment. Unless he meets the criteria of having served for the duration of the qualifying period, the period spent in contractual employment cannot be added to make up for any deficiency in qualifying service S Civil Appeal No. 1496 of 2019 S for the purpose of eligibility to receive pension. The Tribunal has clearly and obviously taken an incorrect and erroneous view of the law and has been unable to appreciate the essence and tenor of Shah Jahan Shah's case ibid which is an authoritative declaration of law on the subject by this Court. Reference of the Tribunal to selective portions of the alorenoted judgments are found to be out of context leading to incorrect and erroneous interpretation of the relevant principles of law. We therefore find that the impugned judgment of the Tribunal dated 05.10.2018 is unsustainable. It is accordingly set aside. Consequently, the listed appeal is allowed and the Service Appeal bearing No.265(R) of CS 2016 filed by Respondent No.1 (Syed Afroz Akhtar Rizvi) before the Tribunal is dismissed. ISLAMABAD, THE 12 of July, 2021 ZR/* Afet Approved For Reporting -. I

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHMED, CJ MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL APPEAL NOs. 1499 & 1500 OF 2019 (On appeal against the judgment dated 10.09.2018 passed by the Federal Service Tribunal, Lahore in Appeal Nos. 243(L) & 244(L)/2016) Divisional Superintendent Postal Services Jhang and another …Appellant(s) VERSUS Siddique Ahmed (In CA 1499/2019) Jhandy Khan (In CA 1500/2019) …Respondent(s) For the Appellant(s): Mr. Sohail Mehmood, Addl. Att. General Raja Abdul Ghafoor, AOR (In both cases) For the Respondent (1): In person in both cases Date of Hearing: 08.07.2021 … JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through these appeals by leave of the Court under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, the appellants have called in question the vires of the impugned judgment dated 10.09.2018 passed by the learned Federal Service Tribunal, Lahore, whereby the Service Appeals filed by the respondents were allowed and the penalty of dismissal from service was converted into withholding of one increment for two years. 2. Briefly stated the facts of the matter are that the respondents in both the appeals namely Siddique Ahmed and Jhandy Khan were working as Postmen. The allegation against the respondents is that they have misappropriated money orders amounting to Rs.50,000/- and Rs.15000/- respectively by forging signatures of the payees and showed the same to have been paid to the rightful owners. During the course of investigation, the respondents confessed their guilt, which led to issuance of Show Cause Notices to them by the competent authority on account of inefficiency, misconduct and corruption. The respondents submitted their explanations before the Authorized Officer in which they admitted their guilt. Ultimately, Civil Appeal Nos. 1499 & 1500/2019 -: 2 :- after affording an opportunity of personal hearing, the competent authority vide separate orders dated 06.11.2015 imposed major penalty of dismissal from service upon the respondents. The respondents preferred departmental appeals but the same stood dismissed vide orders dated 18.01.2016 & 22.01.2016. Being aggrieved, the respondents filed Service Appeals before the learned Federal Service Tribunal, which have been allowed vide impugned judgment and the major penalty of dismissal from service has been converted into withholding of one increment for two years. Hence, these appeals by leave of the Court. 3. The crux of the arguments advanced by learned Additional Attorney General is that the respondents have themselves admitted that they have put forged signatures of the payees and kept the money with them; that merely the fact that subsequently, they returned back the misappropriated amount does not absolve them of their liability; that they were duty bound to either deliver the money orders to the payees or in case they were not available, to handover the same to the Post office; that the learned Service Tribunal also taken note of the fact that the money orders were used by the respondents for their own purpose and they were habitual in committing temporarily misappropriation of the money orders but despite that it allowed the appeals, which is not sustainable in the eyes of law. 4. The respondents, who appeared in person, admitted that although they had kept the amount of money orders with them but it was on the asking of the payees, who were out of town due to their official commitments. 5. We have heard learned Law Officer as also the respondents in person and have perused the available record. 6. In the present case, the fact of misappropriation of the money orders amount is not disputed. The respondents, who appeared in person, have admitted before us that instead of delivering the said amount to the payees, they kept the same with them for 10/15 days. However, they have stated that it was on the asking of the payees, who according to them were out of town. On our specific query, as to whether they were not supposed to handover the money orders back to the Post Office if the payees were not available at the address to which they admitted that they ought to have done so. According to learned Law Officer, the respondents did not take this stance in their written Civil Appeal Nos. 1499 & 1500/2019 -: 3 :- statements, which they had submitted before the Authorized Officer. Although, the said written statements are not annexed with these appeals but the respondents did not join this issue before us, which shows their implied admission. This Court in the case of Divisional Superintendent, Postal Services Vs. Muhammad Arif Butt (2021 SCMR 1033) while dealing with the similar case where the respondent postman instead of delivering the amount to the rightful owner had utilized the amount of Rs.36,400/- for his personal use, has candidly held that “a Government servant who is found to have misappropriated public money, notwithstanding its amount, breaches the trust and confidence reposed in a Government servant who is charged with the responsibility of handling public money. Misappropriation of the same, whether temporary or permanent and irrespective of the amount constitutes dishonesty and misconduct. Such an employee/individual has no place in Government Service because he breaks the trust and proves himself to be unworthy of the confidence that the State reposes in him. It is a fundamentally important requirement of his job that Rules and regulations are followed and violations be dealt with strictly.” In paragraph 7 of the impugned judgment, the learned Federal Service itself taken note of the fact that the respondents had used the money orders’ amount for their own purpose and they are in the habit of committing temporarily misappropriation of the same amount but despite that it took a lenient view, which was not warranted in law because misappropriation of the amount either meager or huge results in breach of trust which is reposed in a government servant and the delinquent has no right to be retained in service. 7. For what has been discussed above, these appeals are allowed and the impugned judgment is set aside. CHIEF JUSTICE JUDGE Islamabad, the 8th of July, 2021 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 Jawwad S. Khawaja Mr. Justice Sh. Azmat Saeed CIVIL APPEALS NO.149 AND 150 OF 2010. (On appeal from the judgments of the High Court of Sindh, Karachi, dated 07.05.2008 & 28.02.2008, passed in CPs No.D-442 & D-441 of 2007, respectively) Habibullah Energy Limited In CA.149/2010. Zonal Labour Union Lakhra and others. In CA.150/2010. … Appellants VERSUS WAPDA through its Chairman and others. In CA.149/2010. Federation of Pakistan through Secretary M/o W&P and others. In CA.150/2010. … Respondents ---- For the Appellants (s) : Miangul Hassan Aurangzeb, ASC Mr. Arshad Ali Ch., AOR (in CA.149/2010) Mr. Tariq Mehmood, Sr. ASC (in CA.150/2010) On Court’s Notice : Mr. Shah Khawar, Addl. AGP CAs.149/2010, etc. 2 For Chairman, WAPDA & Lakhra Power Generation : Mr. Shahid Hamid, Sr. ASC For M/o W&P : Raja Abdul Ghafoor, ASC/AOR Mr. Saifullah Chatha, Secy., W&P Mr. Zargham Ishaq, MD, PEPCO Barrister Asghar Ali, Sr. Legal Consultant For the Privatization Commission : Mr. Abdul Haseeb Khan, Sr. Legal Consultant For NEPRA : Kh. Muhammad Naeem, Chairman For the Associated Lakhra Energy : Mr. Wasim Sajjad, Sr. ASC Mr. Mehr Khan Malik, AOR Date of Hearing : 19-21.08.2013. JUDGMENT SH. AZMAT SAEED, J.- The Water & Power Development Authority (WAPDA) granted 20-years lease to M/s. Associated Group (M/s. AG) in respect of GENCO-IV Lakhra Power Generation Company Limited on 11.09.2006. The said transaction was challenged by M/s. Habibullah Energy Limited (M/s. HEL) before the learned High Court of Sindh by filing Constitutional Petition No.D-442 of 2007, which was dismissed vide judgment dated 07.05.2008. Being aggrieved, M/s. HEL challenged the aforesaid judgment through Civil Petition for Leave to Appeal No.545 of 2008 before this Court. 2. The grant of lease on 11.09.2006 by WAPDA to M/s. AG was also challenged by the Zonal Labour Union, Lakhra CAs.149/2010, etc. 3 (ZLU) and others before the learned High Court of Sindh through Constitutional Petition No.D-441 of 2007, which was also dismissed vide judgment dated 28.02.2008. Being aggrieved, the said ZLU invoked jurisdiction of this Court through Civil Petition for Leave to Appeal No.351 of 2008. 3. In both the afore-mentioned Civil Petitions for Leave to Appeal, this Court vide Order dated 08.03.2010 granted leave to appeal and the said Petitions were converted into Appeals i.e. Civil Appeals No.149 and 150 of 2010. The relevant portion of the Leave Granting Order is reproduced herein below: “After having heard the learned counsel on behalf of the parties at length, we feel that there are certain legal, Constitutional and factual ticklish questions which need some discussion and accordingly leave to appeal is granted, inter alia, on the question as to whether the process has been completed in a fair and transparent manner. …”. 4. Both the aforesaid Civil Appeals involving common questions of law and fact were heard together and were allowed by this Court vide short Order dated 21.08.2013 in the following terms: “We have heard the learned counsel for the parties at length and have examined the pleadings/documents placed before us for ascertaining as to whether transaction between the parties i.e. the Lease for 20-years in respect of Lakhra Power Station GENCO-IV, dated 11.09.2006, followed by Power Purchase Agreement dated 15.12.2007 had been entered into in a transparent manner following the PEPRA CAs.149/2010, etc. 4 Rules and allowing open opportunity to interested parties to participate in the competition for acquiring the said Leasehold Rights. 2. The conclusion is that the transaction noted herein above between M/s. Associated Group (AG) and the Water and Power Development Authority (WAPDA) is not sustainable being non- transparent and also suffers from irregularities, illegalities, omissions and commissions as well as violates the relevant Rules as well as precedents set-forth by the superior Courts. 3. Therefore, while setting aside the transaction noted herein above, we direct the Federal Government of Pakistan to conduct an inquiry/probe to fix the civil and criminal liability upon the persons/beneficiaries, etc in accordance with the law as a result of above conclusion. 4. For the reasons to be recorded later, both the appeals are allowed with costs throughout.” The detailed reasons of the above-said Order are as follows: 5. The brief facts necessary for adjudication of the lis at hand as gleaned from the voluminous record made available by the parties are that apparently the Coal Fired Lakhra Power Plant consisting of three (03) Generating Units of 50 MW each (total 150 MW) were set up by WAPDA in Kashmore, District Jamshoro, Province of Sindh. The said Plant i.e. Coal Fired Lakhra Power Plant apparently became operational in 1995. In February, 2002, the Lakhra Power Generation Company Limited (LPGC) was incorporated as a subsidiary of WAPDA in which the said Plant vested. CAs.149/2010, etc. 5 6. In the meeting held on 12.06.2001, the Task Force on Thar Coal decided that the Government of Sindh should take necessary action/steps to privatize the Lakhra Power Plant in consultation with WAPDA. Perhaps it was pursuant to the aforesaid decision that the LPGC was incorporated. On 26.07.2003 an advertisement was issued on behalf of LPGC, inter alia, in the Daily Dawn, News and the Nation inviting applications for Pre-qualification/Expression of Interest for privatization of 150 MW Fluidized Bed Combustion Coal Fired Power Plant Lakhra near Khanote in District Jamshoro, Sindh. The salient features of the said advertisement were that a decision had been taken by the Federal Government to privatize the Lakhra Power Plant through the Sindh Privatization Commission (Commission). However, the said Power Plant required major rehabilitation for which an Internationally experienced Operator for Rehabilitation, Operation, Maintenance and Management (ROMM) was to be appointed. The offers were invited only for the Pre-qualification for appointment as a ROMM Operator. Pursuant to the aforesaid advertisement, 17 parties purchased the Information Package, 8 parties responded/submitted their Expression of Interest disclosing their experiences and financial standings. However, only two parties i.e. M/s. Muhammad Ismail CAs.149/2010, etc. 6 & Company (Pvt) Limited, Hyderabad and M/s. Habibullah Energy Limited, Karachi (the Appellant in Civil Appeal No.149 of 2010) submitted the Pre-qualification documents before the due date. It may be pertinent to mention that M/s. AG neither submitted any Expression of Interest nor any Pre-qualification documents pursuant to the afore-said advertisement. 7. The offers made pursuant to the advertisement dated 26.07.2003 were not found satisfactory and in this behalf objections were also raised by the Commission. Consequently, on 17.03.2004 the Water & Power Development Authority decided to terminate the process and to undertake an inhouse maintenance programme, so as to increase the capacity and feasibility of the said Power Plant. In pursuance of the aforesaid decision, the Purchase Orders, both local and international, were placed for the procurement of material for rehabilitation of the Lakhra Power Plant. 8. M/s. Rupali Polyester Limited vide letter dated 22.06.2004 expressed its interest in lease of the said Power Plant. The said request was turned down by WAPDA, thereafter, on 20.08.2005 M/s. AG apparently wrote a letter to WAPDA expressing its interest to get a lease of the said Power Plant. CAs.149/2010, etc. 7 Pursuant to the said letter, as per the case of the Federation before us, a meeting was held in October, 2005 in the Presidency between M/s. AG and the Chief of Staff to the President, followed by a meeting with the then President on 29.11.2005. 9. In the above backdrop M/s. AG wrote a letter on 06.01.2006 to the Chairman, WAPDA which is reproduced hereunder for reference: “To Chairman WAPDA WAPDA House, Lahore Sub: Lease of Lakhra Coal Fired Power Project - Presentation/Documents Dear Tariq Bhai, We appreciate your cooperation in giving us opportunity to present 3 x 50 MW Lakhra Fluidized Bed Coal Power Project assessment study executive summary by PIC Marubeni Energy Group tomorrow at 3 PM. However, due to the presentation scheduled tomorrow for Prime Minister in Islamabad on the same subject will request you to kindly reschedule the presentation for next week? Per the proper protocol we wanted to brief you about our work before meeting the Prime Minister tomorrow but you have been tied up in other meetings. Our presentation covers the detailed work that has been carried out and give you a good overview of the project. For your information and review please find the Plant Condition Assessment Report and a draft MOU. We look forward to meeting you. Thank you very much, Sincerely yours, CAs.149/2010, etc. 8 Sd/- Iqbal Z. Ahmed Chairman” 10. A perusal of the Memorandum of Understanding (MOU) appended with the letter dated 06.01.2006 indicated that the lease would be for a period of 20-years and in case of privatization, M/s. AG would have the first right of refusal. In response, WAPDA vide letter dated 19.01.2006 asked M/s. AG to submit its technical and financial proposals. On 09.03.2006 the Representatives of M/s. AG met with the then Federal Minister for Water & Power and gave a presentation. 11. A meeting was convened on 22.03.2006, the Minutes whereof are available on the record wherein the then President and the Prime Minister, inter alia, took the following decision: “WAPDA to finalize terms and conditions for leasing Lakhra Power Plant to Associated Group within one week.” 12. WAPDA addressed a letter dated 25.03.2006 to six of the Companies which had shown interest pursuant to the advertisement dated 26.07.2003 for Pre-qualification for appointment as a ROMM Operator, to submit their proposals for lease of the Lakhra Power Plant within four weeks, which time was subsequently extended up to 22.05.2006. M/s. AG did not submit any fresh proposal purportedly in view of the decision CAs.149/2010, etc. 9 dated 22.03.2006 referred to above. In a subsequent meeting dated 12.05.2006 chaired by the then President of Pakistan, it was decided that M/s. AG should be given the first right of refusal in respect of lease of the Coal Fired Lakhra Power Plant. The said decision was communicated vide Prime Minister’s Secretariat letter dated 25.05.2006. M/s. HEL, Appellant in Civil Appeal No.149 of 2010, was the only Firm which submitted its proposal by due date i.e. 22.05.2006. Another meeting was held in the President House at Islamabad on 13.07.2006, in pursuance whereof vide letter dated 17.07.2006, both M/s. Habibullah Energy Limited and M/s. Associated Group were advised to submit their revised bids by 21.07.2006 to be opened on the same date. Such revised bids were submitted and opened. M/s. AG made two separate offers based on two separate proposals. One of the offers of M/s. AG after some adjustments through negotiations with WAPDA was approved by the Board of Directors of LPGC on 19.08.2006. The Government of Sindh vide letter dated 24.08.2006 conveyed its No Objection. The offer was approved by the WAPDA Board on 06.09.2006 whereupon a Lease Deed was executed in favour of M/s. AG on 11.09.2006. Pursuant thereto, we are informed that a Power Purchase Agreement dated 15.12.2007 has since been executed. CAs.149/2010, etc. 10 13. The grant of lease to M/s. AG was challenged variously, both by the M/s. HEL and the ZLU through two separate Constitutional Petitions filed before the learned High Court of Sindh. Both the Constitutional Petitions were dismissed by two separate judgments dated 07.05.2008 and 28.02.2008. Feeling aggrieved, M/s. HEL and the ZLU invoked jurisdiction of this Court through two separate Civil Petitions for Leave to Appeal No.545 and 351 of 2008, which were converted into instant appeals i.e. Civil Appeals No.149 and 150 of 2010, respectively. 14. We have heard the learned counsel for the parties as well as the learned Additional Attorney General for Pakistan. 15. It is contended by the learned counsel for the Appellant-M/s. HEL that the advertisement dated 26.07.2003 was for inviting applications for Pre-qualification/Expression of Interest for appointment as a ROMM Operator only. The said Appellant was one of the two Companies which had submitted its Pre-qualification documents as is evident from the record. In the circumstances, the Respondents-WAPDA/LPGC were bound to pre-qualify the Appellant. M/s. AG did not even participate in the pre-qualification process and in the absence of such pre- CAs.149/2010, etc. 11 qualification it was a rank outsider whose bid could not even be considered by WAPDA/LPGC. 16. The learned counsel further contended that no specific advertisement was issued inviting bids for lease of the said Power Plant and in absence of such an advertisement for information of public-at-large the entire process was liable to be set aside. Even otherwise, the offer submitted by M/s. AG was unsolicited, therefore, invalid. Furthermore, the bid submitted by M/s. AG contained two alternative proposals, which is not permitted in law and such bid should have been treated as non-responsive and rejected. It is added that the documents on record illustrate that M/s. AG had easy and exclusive access to the persons involved in the decision making process for grant of lease, as a consequence whereof the entire process was far from transparent. The learned counsel further added that a decision to award the Contract to M/s. AG was taken on 22.03.2006 at the highest level, whereafter with mala fide intention and by way of deception, notices were issued on 25.03.2006 to some of the Companies which had participated in the pre-qualification process for appointment of a ROMM Operator. Even then, the notices were not issued to all the parties who had shown their interest in response to the advertisement dated 26.07.2003 mentioned above. It is further CAs.149/2010, etc. 12 added that M/s. AG was exclusively granted the first right of refusal which was not available to any other bidder. The learned counsel further contended that the transaction for the lease of the Lakhra Power Plant fell squarely within the purview of the Privatization Commission Ordinance, 2000 (Ordinance, 2000) and could only be effected by the said Privatization Commission in accordance with the mode of privatization prescribed in the Ordinance, 2000 and the Rules framed thereunder as in view of Section 42 of the said Ordinance, 2000, the provisions thereof would override any other law for the time being enforce. In short, it is contended that the transaction was carried out by an Institution which had no jurisdiction in a manner not provided by law. The learned counsel added that the provisions of the Public Procurement Rules, 2004 (Rules, 2004) were not adhered to especially with reference to Pre-qualification. In view of the above, it is contended that the award of the Contract to M/s. AG was not sustainable in law. 17. In support of his contentions, the learned counsel placed reliance on the judgments, reported as Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others (PLD 2006 SC 697), Petrosin Corporation (Pvt) Limited and others v. MOL CAs.149/2010, etc. 13 Pakistan Oil and Gas Co. and others (PLD 2008 SC 472) and Messrs Subhan Deepwell Corporation, Bahawalpur v. Project Director, Punjab Rural Water Supply and Sanitation Project HUD and PHE Department, Lahore and another (2001 CLC 1762). He also referred to the various provisions of the Rules, 2004 as well as the PCO 2000 and the Privatisation (Modes and Procedure) Rules, 2001. 18. The learned counsel for the Appellant-Zonal Labour Union, Larkana and others echoed the contentions raised on behalf of M/s. HEL and further added that the process for appointment of a ROMM Operator had been formally terminated and a specific decision in this behalf had been taken which is on the record. Therefore, grant of lease to M/s. AG was the outcome of a separate and independent procedure which had been initiated without the issuance of a public advertisement inviting offers and in the absence of such public advertisement, the entire process is illegal and invalid in view of the law laid down by this Court. He further contended that the offer of M/s. AG was unsolicited and non-responsive and the Contract had been obtained by it through unfair means and by exercise of influence on account of its connections with the decision making Authorities at the highest level which is self-evident from the record. The learned counsel CAs.149/2010, etc. 14 further submitted that the award of the Contract was illegal and void, and should be declared as such. 19. The learned counsel for M/s. AG controverted the contentions raised on behalf of the Appellants. He further contended that the mode, process and the procedure to be adopted was the prerogative of WAPDA/LPGC and M/s. AG participated in the same, hence, cannot be penalized for the irregularity, if any, in the process. He laid great stress that the offer made by M/s. AG was financially more beneficial to WAPDA/LPGC than any other offer received by them at any point of time. The offer made by M/s. AG is also in the public interest, as it would help in generating electricity at a very economical cost. 20. The learned counsel for WAPDA at the very outset stated that perhaps it would have been more appropriate to issue an advertisement, inviting bids for grant of lease of the Generating Plant, however, in the peculiar facts and circumstances which existed the most efficient and fair procedure was adopted. He further contended that three (3) Generating Units at Lakhra desperately needed rehabilitation involving a large input of fresh capital. A decision to privatize the same was taken and as a precursor to such privatization, it was decided to appoint a ROMM Operator. The response to the advertisement in this CAs.149/2010, etc. 15 behalf was very poor and impractical. Consequently, a decision to explore alternative possibilities was made and an offer was received from M/s. AG for lease of the said Plant which also included a large investment by the lessee. All the Firms and Companies which showed any interest in the Lakhra Power Plant were invited and the offers therefrom solicited. M/s. HEL participated in the said process but the offer made by M/s. AG admittedly was more economical, hence, it was accepted after some adjustments for the benefit of WAPDA and LPGC. It is further contended that the Contract as awarded is bona fide and in the public interest, therefore, minor inconsequential irregularities cannot be made basis for invalidating the Contract awarded. It was also the case of the learned counsel, that in view of the failure to find a ROMM Operator for the Coal Fired Lakhra Power Plant for the purpose of rehabilitating the same as a preclude to its eventual privatization an alternative way forward had to be found. The peculiar facts and circumstances necessitated the leasing of the Plant and in this behalf the offer of M/s. AG was accepted through a proper process. Such offer was not only economical for the WAPDA but also in the public interest, therefore, minor deviation, if any, neither adversely effect the integrity of the process nor furnished a legal basis for judicial review. It is CAs.149/2010, etc. 16 emphasized that the offer made by M/s. AG was more attractive than any other offer received from any other party, including M/s. HEL (Appellant). 21. The learned counsel was of the view that the transaction in question had been carried out in exercise of the powers conferred under Section 8(2)(vii) read with the explanation to Section 8(2)(v) of the WAPDA Act, 1958 and did not come within the purview of the Ordinance, 2000. 22. In support of his contentions, the learned counsel relied upon the judgment, reported as Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others (2012 SCMR 455). The learned counsel also disputed the locus standi and bona fide of the Appellants. 23. The learned Additional Attorney General for Pakistan appearing on behalf of the Federation disowned the award of the Contract to M/s. AG. On instructions, he stated that the Federal Government is of the view that the entire leasing transaction is without lawful authority and in excess of jurisdiction. A number of irregularities and serious lapses were committed, impairing the transparency, with the sole purpose of benefiting a particular party/beneficiary at the cost of the State and the people. 24. Heard. Available record perused. CAs.149/2010, etc. 17 25. Adverting first to the legal objection raised by the learned counsel for WAPDA regarding the locus standi of the present Appellants to invoke the constitutional jurisdiction of the learned High Court, it may be noted that such objection is with reference to M/s. ZUL (Appellant in Civil Appeal No.150 of 2010) and not with regards to M/s. HEL (Appellant in Civil Appeal No.149 of 2010). Since both the Constitution Petitions from which the instant two Appeals arose had been filed to challenge the same transaction of the contract/lease granted in favour of M/s. AG for which M/s. HEL had also submitted a bid, the said legal objection pales into insignificance and looses all relevance. Even otherwise, as has been repeatedly held the jurisdiction of the Superior Courts of Judicial Review for the enforcement of Fundamental Rights is not a “closed shop” particularly, in the context of Public Interest Litigation (PIL), therefore, the contentions of the learned counsel even on a stand alone basis with reference to Civil Appeal No.150 of 2010 are rather suspect, more so as the jurisdiction had been invoked by the workers employed in a public Asset to question the proprietary and integrity of the process of the transfer of rights in such Asset. CAs.149/2010, etc. 18 26. The nature, scope and extent of the power of judicial review by the superior Courts of administrative actions and the grounds on the basis whereof such actions can be set aside has evolved with the passage of time and its contours stand clearly defined especially in the context of the award of the contracts by the State or its instrumentalities. In the case, reported as Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268), the following was held: "Further a contract, carrying elements of public interest, concluded by functionaries of the State, has to be just, fair transparent, reasonable and free of any taint of mala fides, all such aspects remaining open for judicial review. The rule is founded on the premises that public functionaries, deriving authority from or under law, are obligated to act justly, fairly equitably, reasonably, without any element of discrimination and squarely within the parameters of law, as applicable in a given situation. Deviations, if of substance, can be corrected through appropriate orders under Article 199 of the Constitution. In such behalf even where a contract, pure and simple, is involved, provided always that public element presents itself and the dispute does not entail evidentiary facts of a disputed nature, redress may be provided. A number of precedents have contextually come to occupy the field and, inter alia, may be noted (1) Anjuman-e-Ahmadiya, Sargodha v. Deputy Commissioner, Sargodha, PLD 1966 SC 639, (2) The D. F.O. South Khari v. Ram Sanehi Singh, 1971 (3) Supreme Court Cases 864-AIR 1973 SC 205; (4) Rashid A. Khan v. West Pakistan Railway Board PLD 1973 Lahore 733; (5) The Majilisi-lntizamia, Jamia Masiid, Ghulam Muhammad Abad Colony v. Secretary to Government of West Pakistan, CAs.149/2010, etc. 19 Communication and Works Department, PLD 1975 SC 355, (6) Muhammad Ashraf Ali v. Muhammad Naseer and 2 others 1986 SCMR 1096 (7) M/s. Dwarkadas Marfatia & Sons v. Board of Trustees, Bombay Port, AIR 1989 Supreme-Court 1642; (8) M.H. Abidi v. State Life Insurance Corporation, 1990 MLD 563; (9) Mahabir Auto Stores v. Indian Oil Corporation, AIR 1990 Supreme Court 1031; (10) Shrilekha Vidyarthi v. State of U.P. AIR 1991 Supreme Court 537; (11) M/s Pacific Multinational (Pvt.) Ltd v. Inspector-General of Police Sindh PLD 1992 Karachi 283; (12) Messrs Presson Manufacturing Ltd. v. Secretary Ministry of Petroleum & Natural Resources and 2 others 1995 MLD 15 (Lahore) and (16) Shoaib Bilal Corporation v. Government of Pakistan KLR 1997 Rev. Cas. 27 Lahore." The aforesaid judgment was noted and followed by this Court in the case, reported as Messrs Ramna Pipe and General Mills (Pvt) Limited v. Messrs Sui Northern Gas Pipe Lines (Pvt) and others (2004 SCMR 1274). 27. This Court, in the case, reported as Raja Mujahid Muzaffar and others v. Federation of Pakistan and others (2012 SCMR 1651), has held as under: “31. Public funds, public property, licenses, jobs or any other government largesse is to be dealt with by public functionaries on behalf of and for the benefit of the people. Public authority must necessarily be examined in accordance with law keeping in view the Constitutional Rights of the citizens. Thus, this Court has not hesitated in the exercise of its jurisdiction of judicial review …”. In Suo Motu Case No.13 of 2009 (PLD 2011 SC 619), this Court held as follows: CAs.149/2010, etc. 20 “24. It is well-settled that in matters in which the Government bodies exercise their contractual powers, the principle of judicial review cannot be denied. However, in such matters, judicial review is intended to prevent arbitrariness or favouritism and it must be exercised in larger public interest. It has also been held by the Courts that in matters of judicial review the basic test is to see whether there is any infirmity in the decision making process. It is also a well-settled principle of law that since the power of judicial review is not an appeal from the decision, the Court cannot substitute its decision for that of the decision maker. The interference with the decision making process is warranted where it is vitiated on account of arbitrariness, illegality, irrationality and procedural impropriety or where it is actuated by mala fides. …” It was further held as follows: “32… The Governmental bodies are invested with powers to dispense and regulate special services by means of leases, licences, contracts, quotas, etc., where they are expected to act fairly, justly and in a transparent manner and such powers cannot be exercised in an arbitrary or irrational manner. Transparency lies at the heart of every transaction entered into by, or on behalf of, a public body. To ensure transparency and fairness in contracts, inviting of open bids is a prerequisite. The reservations or restrictions, if any, in that behalf should not be arbitrary and must be justifiable on the basis of some policy or valid principles, which by themselves are reasonable and not discriminatory.” In the case, reported as Maulana Abdul Haque Baloch and others v. Government of Balochistan through Secretary, Industries and Mineral Development and others (PLD 2013 SC 641), the following was held: 117. As regards the power and jurisdiction of the municipal courts to nullify any action of the CAs.149/2010, etc. 21 Government where it is established that the decision-making authority has exceeded its powers; committed an error of law or breach of the rules of natural justice; reached a decision which no reasonable forum would have reached; or abused its powers, …”. In the case of Corruption in Hajj Arrangements (PLD 2011 SC 963), this Court has held as under: “29. The jurisdiction of this Court is always exercised judiciously and with judicial restraint. All those cases which are quoted hereinabove clearly indicate that in the matter of exercise of power of judicial review in Pakistan we have not travelled so far as is the position in the neighboring country. By now, the parameters of the Court's power of judicial review of administrative or executive action or decision and the grounds on which the Court can interfere with the same are well settled. Indisputably, if the action or decision is perverse or is such that no reasonable body of persons, properly informed; could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters the Court would be justified in interfering with the same. [Commissioner of Income Tax v. Mahindra (AIR 1984 SC 1182)]. The exercise of constitutional powers by the High Court and the Supreme Court is categorised as power of judicial review. Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of Fundamental Rights guaranteed by the Constitution. With the expanding horizon of Articles dealing with Fundamental Rights, every executive action of the Government or other public bodies, if arbitrary, unreasonable or contrary to law, is now amenable to the writ jurisdiction of the Superior Courts and can be validly scrutinised on the touchstone of the Constitutional mandates. CAs.149/2010, etc. 22 [Common Cause, A Regd. Society v. Union of India (AIR 1999 SC 2979)]. In the case of Union Carbide Corporation v. Union of India [AIR 1992 SC 248 = 1991 SCR (1) Supl. 251]. In the case of Stretching Computers Ltd v. Messers M. and N. Publications Ltd (AIR 1996 SC 51), it was also held as under: “… It has also been pointed out that for securing the public interest one of the methods recognized is to invite tenders affording opportunity to submit offers for consideration in an objective manner. However, there may be cases where in the special facts and circumstances and due to compelling reasons which must stand the test of Article 14 of the Constitution, departure of the aforesaid rule can be made. …” 28. An overview of the judgments reproduced or referred to herein above leaves little room for doubt that it is now a well- settled principle of law that all public functionaries must exercise public authority, especially while dealing with the public property, public funds or Assets in a fair, just, transparent and reasonable manner, untainted by mala fide without discrimination and in accordance with law, keeping in view the Constitutional Rights of the Citizens. This would hold true even in the absence of any specific statutory provisions setting forth the process in this behalf. Therefore, it is not really relevant whether the transaction in question was governed by the Ordinance, 2000 or the Rules, 2004 or neither. It is an equally well settled principle of law that such actions of public functionaries are always subject to CAs.149/2010, etc. 23 Judicial Review. No doubt, while exercising its jurisdiction, the Superior Courts neither sit in appeal over the administrative actions nor interfere on account of inconsequential deviations, as has been observed in Dr. Akhtar Hassan Khan’s case (supra). However, where the administrative authority acts in a discriminatory manner and action fails the test of reasonableness, transparency and/or is otherwise unjust and unfair or suffer from mala fide, the Courts not only are vested with the jurisdiction to set aside such action but any failure in such an eventuality to exercise the power of Judicial Review, when invoked, would make the Court a party to such unreasonable, unfair, mala fide and illegal action. 29. Examining the transaction, the subject matter of the instant case in the light of the principles of Judicial Review enumerated hereinabove, it appears that the original process initiated through the advertisement dated 26.07.2003 was for the appointment of a ROMM Operator and was commenced through the Government of Sindh in consultation with WAPDA. The said process was formally terminated on 17.03.2004. The disputed contract of lease was a result of independent process undertaken by WAPDA unrelated to the procedure initiated pursuant to the advertisement dated 26.07.2003. No fresh public advertisement CAs.149/2010, etc. 24 was issued. Such an advertisement is universally accepted as a condition precedent for ensuring a free, fair, open, competitive and transparent process for transfer of public assets or rights therein. In fact no compelling reasons have been pleaded at the bar by WAPDA for not issuing such an advertisement. The absence of such an advertisement, alone in fact and under the circumstances of the case, is fatal to the transaction in question. 30. M/s. Rupali Polyester Limited vide letter dated 22.06.2004 expressed its interest to lease the said Power Plant, which was turned down and rightly so by WAPDA. However, when M/s. AG approached WAPDA in this behalf, it was welcomed with open arms. 31. The admitted record also reveals that M/s. AG was unilaterally given prior access to the Power Plant evidencing the availability of an unfair advantage and access to the decision making authorities at the highest level not only in WAPDA but also in the Presidency. 32. The documents and facts, as made available by WAPDA, revealed that no formal decision was taken by WAPDA on its own to lease out the Power Plant that too for a period of 20 years. In fact, such decision was taken for WAPDA by M/s. AG, CAs.149/2010, etc. 25 as it is apparent from the MOU appended with the letter dated 06.01.2006. 33. The decision in principle to award the contract to M/s. AG was taken on 22.03.2006 at the highest level by the President of Pakistan, Prime Minister of Pakistan and the Chairman, WAPDA. Thereafter, without issuing any advertisement for the information of the public at large, some of such firms, which had originally shown their Expression of Interest for being appointment as a ROMM Operator, pursuant to the advertisement dated 26.07.2003 were contacted. Such procedure was not only illegal but in fact a farcical and mala fide attempt to clothe the transaction with some semblance of legality. The said process and the subsequent approval by the Board of WAPDA to M/s. AG appears to be an infertile attempt to paper over the illegalities. 34. The aforesaid deviations are not trifle but go to the very heart of the matter. The omissions and commissions make it clear and obvious that by no stretch of the imagination, the transaction in question is legal, transparent, fair, open or the result of a competitive and fair process. The Power Plant is a public asset and those entrusted therewith were sadly found wanting. The transaction has not only been disowned by the Federal Government of which the WAPDA is an instrumentality but it has CAs.149/2010, etc. 26 also categorically taken the stand that the transaction was beset with irregularities, and serious lapses were committed impairing its transparency with the sole purpose of benefiting the beneficiary i.e. M/s. AG. The learned counsel appearing for M/s. AG found himself, unable to defend the process culminating in the transaction in question, leaving WAPDA floundering alone in the sea of its own irregularities and illegalities. 35. Thus, for the foregoing reasons, these appeals are allowed with costs through out, the impugned judgments are set aside and the transaction of lease with M/s. AG and the Power Purchase Agreement executed in pursuance thereof held to be not sustainable and the direction was issued to the Federal Government to fix the civil and criminal liability. Chief Justice I agree and have also added a separate concurring note. Islamabad Judge 21.08.2013. ‘APPROVED FOR REPORTING’ Mahtab/* Judge CAs 149-150/2010 1 Jawwad S. Khawaja, J. I have had the benefit of going through the reasoning of my learned brother Azmat Saeed, J., in support of the short order dated 21.8.2013. While in agreement with his conclusions, I am writing this concurring opinion to provide additional reasons in support of the said order. 2. At the outset, it is important to clarify a fundamental principle regarding the nature of public sector enterprises which seems to have eluded learned counsel for the respondents. Public sector enterprises, such as the power plant at Lakhra, are public assets which belong beneficially to the people of Pakistan. While the state is entrusted with the management of such enterprises, the state agencies responsible for management do not thereby become owners of the enterprise and its assets. While public sector enterprises do not have shareholders like private corporations, this does not mean that the agency responsible for the management of the enterprise can exercise unbridled discretion in managing the enterprise. 3. In order to ascertain the proper role of state agencies in the management of public sector enterprises, it is of critical importance to understand the nature of government as defined by our constitutional system. Constitutional democracy is premised on a contractual theory of government, whereby power is delegated by the people to the government in accordance with the terms of the Constitution. The preamble to the Constitution stipulates, inter alia, “that it is the will of the people of Pakistan to establish an order.” State agencies responsible for the management of publicly owned companies are part of the order established by the will of the people, and thereby possess merely delegated authority. 4. Rather than being owners of public sector enterprises, state agencies stand in a fiduciary relationship to the people who are the beneficial owners of the publicly owned assets. The idea that rulers owe a fiduciary obligation to the ruled is at least two millennia old. The Roman philosopher and politician Cicero defined the nature of government as follows in De Officiis, “The guardianship of the state is a kind of trusteeship which should always be managed to the advantage of the person [or body which has] entrusted rather than of those to whom it is entrusted.” We have on numerous occasions emphasized the fiduciary nature of the interaction between the state and the citizen. In Muhammad Yasin v. Federation of Pakistan (PLD 2012 SC 132), we held that “holders of public office…are first and foremost CAs 149-150/2010 2 fiduciaries and trustees for the people of Pakistan. And when performing the functions of their Office, they can have no interest other than the interests of the honourable People of Pakistan.” The basis of fiduciary relations is the exclusive benefit principle, according to which the fiduciary has a duty to act solely in the interests of the beneficiary. Fiduciary obligations depend on the complete commitment of the fiduciary to act in the best interest of the principal. 5. It is important to note that a fiduciary obligation is not merely an ethical precept. As a legal imperative, fiduciaries must act in the best interests of the principal, performing their functions with care and complete fidelity. In the private law context, where fiduciary duties are routinely enforced by the courts, elections alone are not considered sufficient to hold company directors responsible to shareholders and align their interests. Instead, in the area of corporate law, there is a recognition that the interests of elected directors and shareholders may diverge. Given that shareholders are numerous and diffuse, it may be difficult for them to effectively monitor the decisions taken by the board. Further, because of collective action problems, the shareholders may find it difficult to coordinate and respond to abuse of discretionary authority by the directors. Hence, corporate law employs a judicial mechanism, the enforcement of fiduciary duties, to align the interests of the shareholders and their agent, the board of directors. The structure of the principal- agent problem is the same in the case of state agencies, such that public officials may have an incentive to advance their own interests at the expense of the citizens’ interests. In fact, the need for a judicial mechanism is even more acute in the case of state agencies, since the principal, the people, is even more numerous and diffuse than the shareholders of a company. 6. At this point, it is important to note that not all decisions by state functionaries are to be subjected to an exacting judicial oversight. This is because the principal, (the people), has in fact vested state agencies with discretionary power of an administrative nature. Such delegation of authority by the principal is essential to the efficient functioning of the government. However, given the possibility of the agent’s deliberate or negligent deviation from the best interests of the beneficiary, the court will enforce fiduciary obligations under certain circumstances. A breach of the duty of loyalty, such as in the case of a self-dealing transaction or one involving conflict of interest, will trigger CAs 149-150/2010 3 heightened scrutiny by the court. Further, if public officials fail to exercise the duty of care that is expected of a prudent manager, the court will assess the underlying action or transaction to ascertain whether the state functionaries have breached their fiduciary obligations to the people of Pakistan. 7. The respondent state agency that conducted the leasing process of the Lakhra Power Generation Company failed to meet the high standard of loyalty and care that is expected of a fiduciary. Rather than privileging the interests of a particular company interested in utilizing publicly owned assets for its own benefit, the respondent state functionaries ought to have acted solely in the interests of their principal, the people of Pakistan. As elaborated in the lead judgment by my learned brother, the interests of the principal would have been best served if the requirement of pre-qualification for the bidding process would have been uniformly applied to all interested companies, and if a proper advertisement that specially mentioned the intent to ‘lease’ the publicly owned assets had been published by the respondent authorities. These requirements could have been met without any administrative burden to such authorities and would have greatly enhanced the fairness of the bidding process. The failure to uniformly apply rules to all participants in the bidding process or to publish proper advertisement to give notice to potential bidders, suggests that the responsible state authority exercised improper oversight during the leasing process. State agencies have not been entrusted with publicly owned assets so that its functionaries can at their will rubber-stamp a decision without proper review and consideration of its merits. Moreover, favouring one participant in the process over the others suggests that the process has not been conducted in good faith by the public officials responsible for the leasing of the power plant at Lakhra. 8. While the defects in the bidding process are evident, as has been discussed in the lead judgment in this case, we have been urged by counsel for the respondents to condone the tainted transaction in the name of ‘public interest’. Of particular concern is the following submission by Mr. Shahid Hamid, Sr. ASC on behalf of respondents Nos. 1 and 5 (C.M. No. 646 of 2011 in C.A. No. 149 of 2010, emphasis added): “It is highly unlikely that any re-bidding will lead to a rate better than the rate… approved on 12.8.2006… Consequently even if there has been any procedural lapse, the same merits to be condoned in the public interest, as, despite CAs 149-150/2010 4 all hurdles and difficulties, there was no unfairness/inequity/impropriety in the final stage of the bidding and its evaluation.” 9. In the above cited excerpt, the learned counsel has urged this Court to accomplish the impossible: to condone a breach of the rule of law in public interest. If this Court takes upon itself to selectively condone infractions of obligations owed by the state to the people, any semblance of the rule of law in this country will evaporate. Further, learned counsel has erred in submitting that certain circumstances make it impossible to get a rate comparable to the one approved in August 2006. If state authorities such as WAPDA were perfectly adept at knowing ex ante what the highest bidding rate will be, there would be no need for conducting the bidding process. Finally, learned counsel has argued that since the final stage of the bidding process was free of procedural defects, we should condone the lapses in the earlier phases of the process. This is at best a questionable assertion, and at worst deeply inimical to the idea of the rule of law. To begin with, who shall decide what the ‘final’ stage of the bidding process will be? A protracted series of defective decisions followed by a final procedurally adequate decision will not lead to a lawful outcome. If the courts focus only on the final stage of the process, it will give carte blanche to the state agencies to abuse the discretion that has been delegated to them by the principals i.e. the honourable people of Pakistan. 10. In asking this Court to ‘condone’ a violation of the fiduciary duties owed by the state agency to the people, the counsel for respondents is implicitly resorting to the now defunct ‘doctrine of necessity.’ In Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265) we stated emphatically that “the path of expediency and subjective notions of ‘State necessity’ are dead and buried.” The idea that this Court ought to base its decisions on the consequences of government action alone without consideration of the decision-making process is a frontal assault on the very concept of the rule of law. The idea of a “beneficial” deviation from core fiduciary duties of undivided loyalty, prudence, and reasonableness, which the state functionaries owe to the people of Pakistan must be rejected in the strongest terms. 11. This brings me to another misconception in the arguments of Mr. Wasim Sajjad Sr. ASC for the Associated Group. In the name of expediency, the Court has been urged to exercise judicial restraint by condoning the defective aspects of the leasing process and CAs 149-150/2010 5 the lease agreement in this case. Judicial restraint and activism are value-laden concepts often employed in the media and in public discourse, to understand the impact of Court decisions. The Court itself, however, does not operate in the framework of these concepts. For the Court, as guardian and interpreter of the Constitution, the only concept that matters is that of the rule of law. The Court will not condone an illegal action by the state just because it will be perceived as an activist institution. The Constitution defines the role of the judiciary as upholding the rule of law, and that is the only consideration the Court will have while adjudicating the matters before it. Further, in the present case, the concept of judicial restraint is wholly inapplicable, as the case has reached this Court in its appellate jurisdiction. As an aggrieved party, the petitioner has challenged the judgment of the High Court of Sindh and we have granted leave to appeal. Exercising restraint in such a case would be tantamount to denying the opportunity to an aggrieved party to have an unfavorable judgment reversed by a higher court and would also amount to denial of due process to such aggrieved party. 12. In conclusion, I would reiterate that the basis of discretionary power of state functionaries is the delegation of authority by the principal, the people of this country. The state’s legal authority is derived from this fiduciary relationship. If the state or its instrumentalities deviate from their fiduciary obligations, the underlying authority of the state to administer and enforce the law is thereby eroded. If this happens, the citizens, as legal subjects of the state, can no longer be expected to obey the law since the state itself has reneged on its public fiduciary duties. We, therefore, cannot condone violations of public fiduciary duties, because doing so will lead to an erosion of the basis of the state’s legal authority and the rule of law. (Jawwad S. Khawaja) Judge           21.08.2013                                             2                                                                              3                                                                                               4     (beneficial owner)         1                         De Officiis(Cicero)                                                                                                                                    ( PLD 2012 SC 132)                                  (beneficiary)                                           5                                                                                 2                                                                                                                                6                                (beneficiary)                                                                                      7                        3                                                  (lease)                                                                                                                              8           1                 5  C.M. No. 646/10)                2006   12                                                4           9                                    2006                                                                                                                                                          10                                 (PLD 2010 SC 265)                                                   5                                         11                    (restraint)     (activism)   (restraint)                                                 (activism)                                                                                                          12                        (fiduciry relationship)                                    6                           7

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{'id': 'C.A.149_2010.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE MUSHIR ALAM MR. JUSTICE IJAZ UL AHSAN CIVIL APPEAL NO.1509 OF 2016 (Against the judgment dated 29.3.2016 of the Islamabad High Court Islamabad passed in S.T.R. No.27 of 2012) M/s Pakistan Television Corporation Ltd. … Appellant(s) Versus Commissioner Inland Revenue (Legal) LTU, Islamabad etc. … Respondent(s) For the appellant(s): Mr. M. Makhdoom Ali Khan, Sr. ASC Syed Rifaqat Hussain Shah, AOR For the respondent(s): Dr. Farhat Zafar, ASC Raja Abdul Ghafoor, AOR Date of hearing: 23.10.2018 … JUDGMENT MIAN SAQIB NISAR, CJ.- The brief facts of this appeal are that a show cause notice (SCN) dated 23.05.2011 was issued to the appellant for the tax years 2006-2007, 2008-2009 and 2009-2010 raising four issues: (i) non-payment of Federal Exercise Duty (FED) on receipt of PTV license fee; (ii) non-payment of sales tax on program sales; (iii) non-payment of sales tax on sales of fixed assets; and (iv) non-payment of sales tax on sale of scrap. After receiving two replies dated 08.06.2011 and 15.06.2011, the Deputy Commissioner Inland Revenue (DCIR) passed an Order-in-Original (O-in-O) dated 04.10.2011 for recovery of the amounts mentioned in the SCN along C.A. NO.1509/2016 -: 2 :- with default surcharge and penalty (all under the relevant provisions of law). The appellant preferred an appeal against the O-in-O before the Commissioner Inland Revenue, Appeals-II (CIRA) which, vide Order-in-Appeal (O-in-A) dated 27.02.2012, was accepted to the extent that the matter of sales tax on sale of programs was remanded and the matters of non-payment of sales tax on sale of fixed assets and of scrap were vacated, whereas the appeal was dismissed on the point of non-payment of FED on receipt of PTV license fee. Thereafter the appellant filed an appeal before the Appellate Tribunal Inland Revenue (ATIR) which was also dismissed vide order dated 04.12.2012. This order was assailed before the learned High Court through a Sales Tax Reference (STA) which was dismissed through the impugned judgment. Hence, the instant appeal with the leave of the Court dated 23.05.2016 which reads as under:- “Federal Excise Duty was levied on TV license fee which is being collected through electricity bills via various distribution companies. This levy was made under the Wireless Telegraphy Act, 1993 read with the Television Receiving Apparatus (Possession and Licensing) Rules, 1970 and in the circumstances no excisable services are being provided by the petitioners as defined under Section (1)(d) of the Federal Excise Act, 2005. It is stated by the learned counsel for the petition that the view set out by the learned High Court to the contrary is not based on a proper construction/interpretation of the requisite law…” 2. We have heard the arguments of the learned counsel for the parties which are not reproduced for the sake of brevity, but shall reflect in the course of this opinion. However for ease of reference, the relevant provisions of law are reproduced as under:- C.A. NO.1509/2016 -: 3 :- Federal Excise Act, 2005 “3. Duties specified in the First Schedule to be levied.- (1) Subject to the provisions of this Act and rules made there under, there shall be levied and collected in such manner as may be prescribed duties of excise on,- (a) ………………………………………………………………………. (b) ………………………………………………………………………. (c) ………………………………………………………………………. (d) services provided in Pakistan including the services originated outside but rendered in Pakistan; at the rate of fifteen per cent ad valorem except the goods and services specified in the First Schedule, which shall be charged to Federal excise duty as, and at the rates, as set-forth therein. (2) ………………………………………………………………….. (3) The Board may, by notification in the official Gazette, in lieu of levying and collecting under sub-section (1) duties of excise on goods and services, as the case may be, levy and collect duties,- (a) ………………………………………………………………………. (b) on fixed basis, as it may deem fit, on any goods or class of goods or on any services or class of services, payable by any establishment or undertaking producing or manufacturing such goods or providing or rendering such services. (3A) ………………………………………………………………….. (4) ………………………………………………………………….. (5) the liability to pay duty shall be- (a) ………………………………………………………………………. (b) ………………………………………………………………………. (c) in case of services provided or rendered in Pakistan, of the person providing or rendering such service, provided where services are rendered by the person out of Pakistan, the C.A. NO.1509/2016 -: 4 :- recipient of such service in Pakistan shall be liable to pay duty; and (d) ………………………………………………………………………. Explanation.- Subject to sub-section (1), for the purpose of this section, (goods) means the goods specified in CHAPTERS 1 TO 97 and “services” means the services specified in CHAPTER 98 of the First Schedule to the Customs Act, 1969 (IV of 1969). 7. Application of the provisions of the Sales Tax Act, 1990.- (1) In case of goods specified in the Second Schedule or such services as may be specified by the Board through a notification in the official Gazette the duty shall be payable in sales tax mode, whereby- (a) a registered person manufacturing or producing such goods or providing or rendering such services shall be entitled to deduct input tax paid during the tax period from the amount of duty of excise due from him on such goods or services in respect of that tax period; (b) a registered person shall be entitled to deduct the amount of duty of excise paid or payable by him on such goods or services as are acquired by him during a tax period from the output tax due from him in respect of that tax period; (c) a registered person supplying such goods or providing or rendering such services shall be entitled to deduct duty of excise paid or payable on such goods or services as are acquired by him during the tax period from the amount of duty of excise due from him on such goods manufactured or produced or services as are provided or rendered by him during that period; and (d) a person shall be entitled to deduct duty of excise paid or payable, on such goods or services as are acquired by him during a month, from the amount of duty of excise due from him on such goods manufactured or produced or services as are provided or rendered by him, during that month. Such services as are provided or rendered by him, during that month. C.A. NO.1509/2016 -: 5 :- (2) ………………………………………………………………….. Explanation.— ……………………………………………………....... First Schedule Table II (Excisable Services) S.No. Description of Goods Heading/sub- heading Number Rate of Duty 6. Telecommunication services, excluding such services in the area of a Province where such Province has imposed Provincial sales tax and has started collecting the same through its own Board or Authority, as the case may be. 98.12 (All sub- headings) Seventeen per cent of charges [Emphasis supplied] Customs Act, 1969 The First Schedule Section Chapter 98 (SERVICES) 98.12 Telecommunication services 9812.1000 Telephone services 9812.1100 Fixed line voice telephone service 9812.1200 Wireless telephone 9812.1210 Cellular telephone 9812.1220 Wireless Local Loop telephone 9812.1300 Video telephone 9812.1400 Payphone cards 9812.1500 Pre-paid calling cards 9812.1600 Voice mail service 9812.1700 Massaging service 9812.1710 Short Message service (SMS) 9812.1720 Multimedia message service (MMS) 9812.1910 Shifting of telephone connection 9812.1920 Installation of telephone extension 9812.1930 Provision of telephone extension 9812.1940 Changing of telephone connection 9812.1950 Conversion of NWD connection to non NWD or vice versa C.A. NO.1509/2016 -: 6 :- 9812.1960 Cost of telephone set 9812.1970 Restoration of telephone connection 9812.1990 Others 9812.2000 Bandwith services1970 9812.2100 Copper line based 9812.2200 Fibre-optic based 9812.2300 Co-axial cable based 9812.2400 Microwave based 9812.2500 Satellite based 9812.2900 Others 9812.3000 Telegraph 9812.4000 Telex 9812.5000 Telefax 9812.5010 Store and forward fax services 9812.5090 Others 9812.6000 Internet services 9812.6100 Internet services including e-mail services 9812.6110 Dial-up internet services 9812.6120 Broadband services for DSL connection 9812.6121 Copper line based 9812.6122 Fibre-optic based 9812.6123 Co-axial cable based 9812.6124 Wireless based 9812.6125 Satellite based 9812.6129 Others 9812.6130 Internet/e-mail/Data/SMS/MMS services on WLL networks 9812.6140 Internet/e-mail/Data/SMS/MMS services on cellular mobile networks 9812.6190 Others 9812.6200 Data Communication Network services (DCNS) 9812.6210 Copper Line based 9812.6220 Co-axial cable based 9812.6230 Fibre-optic based 9812.6240 Wireless/Radio based 9812.6250 Satellite based 9812.6290 Others 9812.6300 Value added data services 9812.6310 Virtual private Network service (VPN) 9812.6320 Digital Signature service 9812.6390 Others 9812.9000 Audiotext services 9812.9100 Teletext services 9812.9200 Trunk radio services 9812.9300 Paging services C.A. NO.1509/2016 -: 7 :- 9812.9400 Voice paging services 9812.9410 Radio paging services 9812.9490 Vehicle tracking services 9812.9500 Burglar alarm services 9812.9090 Others At first glance, this case is about the challenge by the appellant to the jurisdiction of the tax authorities to levy FED on TV license fee. At the heart of the case, however, is an important question, i.e. what is the correct method of interpreting the headings and sub-headings of the First Schedule to the Customs Act, 1969 (Customs Act) – commonly known as the Pakistan Customs Tariff (PCT)? However before proceeding further, we think it expedient to discuss the various orders passed by the lower fora. 3. The SCN issued by the DCIR to the appellant alleged that:- “The Federal Government has appointed you as an agent in the matter of issuing licences to possess television receiving apparatus, video recording apparatus or reproducing apparatus and television broadcasting receiving antenna under section 5 of the Wireless and Telegraphy Act, 1933 (XVII of 1993)… This fee is collected through domestic electricity bills…This revenue being receipts on account of PTV license fee is taxable under section 3 of the Federal Excise Act, 2005 being telecommunication services (PCT heading 98.12) read with SRO 550(I)/2006 dated 12.06.2006…Therefore, an amount of Rs. 1,522,614,090/- is recoverable from you under section 14 along with default surcharge under section 8 and penalty under section 19 of the Federal Excise Act, 2005.” [Emphasis supplied] The O-in-O passed by the DCIR basically regurgitated the allegations in the SCN without any discussion on the law or the facts. However it is worthy to C.A. NO.1509/2016 -: 8 :- note that three things in the SCN and the O-in-O: (i) the licenses were for the possession of television receiving apparatus; (ii) the fee was levied by the Government of Pakistan; and (iii) the appellant received the TV license fee. 4. In the O-in-A the CIRA was of the view that:- “…it is a fact that TV sets are used by the public to avail the telecast services as the federal excise is levied on the telecommunication services PCT Headings 98.12 in the First Schedule to the Customs Act, 1969… Further the term “telecommunication services” is elaborated from the SRO issued in this regard in SRO No. 648(I)/2005 dated 1.7.2005 PCT heading 98.12 which was showing the description “services provided or rendered by persons engaged in telecommunication work in respect of telephone, telegraph, telex, telefax and alive” [sic]. This SRO was superseded by SRO No. 550(I)/2006 dated 5th June, 2006 wherein PCT heading 98.12 was described as “telecommunication service” which means that the scope of these services was broadened and services like TV telecast were brought within the scope of this term. In view of above noted discussion the TV Telecast fall within the definition of telecommunication services accordingly the TV license fee is liable to federal excise, hence the action of the DCIR is confirmed.” The CIRA decided the case against PTV because, in his view, FED was levied on Telecommunication Services: PCT Heading 98.12. This Heading, in his opinion, was broad enough to cover any and all kinds of ‘telecommunication services’. PTV made telecasts; these were received on television sets; this was telecommunication. The CIRA further concluded that the TV license fee too was covered by PCT Heading 98.12. In reaching these conclusions the CIRA C.A. NO.1509/2016 -: 9 :- did not examine whether any of the sub-headings of PCT Heading 98.12 covered telecasts or television sets or TV license fee. The CIRA referred to SRO No.648(I)/2005 dated 01.07.2005 (SRO 648) and SRO No.550(I)/2006 dated 05.06.2006 (SRO 550). In SRO 648 the services under PCT Heading 98.12 were described as “Services provided or rendered by persons engaged in telecommunication work in respect of telephone, telegraph, telex, telefax and alike”. In SRO 550 which superseded SRO 648, the services under PCT Heading 98.12 were described as “Telecommunication services”. From the variation in the language regarding the description of services in the two SROs the CIRA concluded that “the scope of these services was broadened” under SRO 550 “and services like TV telecast were brought within the scope of this term”. The finding by the CIRA that because PCT Heading 98.12 was titled ‘Telecommunication services’ and because a telecast was a telecommunication service, therefore, TV license fee was covered by this Heading and subject to FED will be examined later. It will be addressed when discussing the order of the Appellate Tribunal Inland Revenue (ATIR) and the judgment of the Islamabad High Court which are to similar effect. The conclusion based on SRO 550 being peculiar to the CIRA and the ATIR will be addressed immediately after the discussion on the order of the ATIR. 5. The appellant filed an appeal with the ATIR against the order of the CIRA. By order dated 04.12.2012 the ATIR dismissed the appeal in which it held as follows:- “The signals based television telecast services are no different to the telecommunication services falling under PCT heading 98.12 chargeable to federal excise duty under SRO No. 550(I)/2006 dated 05.06.2006. In our view anything which is signal based and is provided as a service is liable to excise C.A. NO.1509/2016 -: 10 :- duty. The only purpose of license fee is a provision of telecast service and this service is not outside the ambit of PCT 98.” [Emphasis supplied] The conclusion of the CIRA and the ATIR insofar as it is based on SRO 550 or the superseded SRO 648 is contrary to the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution) and the scheme of levy of a tax as provided in fiscal statutes. A tax, under Article 77 of the Constitution, can only be levied by or under the authority of an Act of Parliament. It is levied under the charging section of such an Act. Section 3 and the First Schedule to the Federal Excise Act, 2005 (Federal Excise Act) as well as the First Schedule to the Customs Act including PCT Heading 98.12 are statutory provisions. These can only be amended by an Act of Parliament. Delegated legislation such as a SRO cannot amend these. Even more so when neither of the two SROs was issued under Section 3 of the FEA, the charging section. Therefore the findings of the CIRA and ATIR to this extent are incorrect and invalid. The SROs and their effect have also been misread. The SROs do not seek to enlarge the scope of PCT Heading 98.12. Both SRO 648 and 550 were issued by the Government of Pakistan, in exercise of its powers under Section 7 of the Federal Excise Act. This section authorises collection of FED in Sales Tax mode for such services as may be specified by the Federal Board of Revenue. SRO 648 as well as SRO 550, thus, merely authorised the collection of FED on ‘Telecommunication Services’ in Sales Tax mode. The notifications explicitly state so. A provision providing for a mode of collection is not a charging provision. It can neither abridge nor expand the scope of a charging provision in an Act. These SROs were, therefore, not intended to and in fact had no effect on the scope of levy of FED on ‘Telecommunication Services’. FED can only be levied under Section 3 of the Federal Excise Act, C.A. NO.1509/2016 -: 11 :- on services specified thereunder or in the First Schedule thereto read with Chapter 98 of the PCT, and not under any SRO. In particular, it could not be levied under an SRO issued under Section 7 of the Federal Excise Act. 6. The decision of the ATIR was examined by the Islamabad High Court in a reference application which was decided against the appellant vide impugned judgment. The learned High Court discussed what in its opinion were the main elements of the TV process and the three major ways to receive TV signals. Based on this discussion the learned High Court concluded as under:- “…that the Television set has been used for the transmission, broadcast and rebroadcast of different programmes through Television signals and the PCT Heading 98.12 refers Telecommunication services including Telephone services etc. and others vide reference No. 9812.9090.” The learned High Court observed that “the International Convention on the harmonized commodity description and coding system provides Rules for interpretation”. It observed that if “through the said interpretation rules if one can review the First Schedule to the Customs Act, 1969, Chapter 98 (Services) heading “Telecommunication Services 98.12 covers Wireless based 9812.6124, Satellite bases 9812.6125, Data Communication Network Services (DCNS) 9812.6200, Wireless/radio based 9812.6240, Satellite based 9812.6250 and others 9812.9090…” Based on these observations the learned High Court concluded that:- “…in view of these Pakistan Customs Tariff headings and subheadings, the TV technology main elements of its process covers the video source, audio source, transmitter, receiver etc. and through three major ways to receive TV signals it includes Broadcast TV, Satellite TV and Cable TV, hence all features are fully attracted in the First Schedule to the Customs Act, C.A. NO.1509/2016 -: 12 :- 1969, Chapter 98 (Services) heading Telecommunication Services, therefore, there is no issue suggesting that the Television provides the services which falls within the definition of word “services” defined in section 2(23) of Federal Excise Act, 2005…” [Emphasis supplied] The learned High Court observed that its “net conclusion” was further strengthened:- “…from the bare reading of section 16 (Exemptions) of Federal Excise Act, 2005 wherein if Pakistan Television Corporation…consider itself exempted, it can apply for exemption but in the present case there is no such exemption issued by the Federal Government.” 7. It is worthy to note that none of the forums below, apart from the learned High Court, referred to Section 16 of the Federal Excise Act to support their conclusions. Before examining the provisions of the Federal Excise Act and the rules for interpretation of the PCT it may be pertinent to first address the finding regarding Section 16 ibid. The Customs Act, the Sales Tax Act, 1990 (Sales Tax Act) and the Income Tax Ordinance, 2001 (Income Tax Ordinance) have their respective charging sections. Tax is levied on a subject covered by the charging section. All these statutes also have provisions which exempt an assessee from the payment of the whole or a part of the leviable tax. An exemption does not take the assessee out of the scope of the charging section. The assessee remains within the tax net and the tax remains leviable. The assessee is, however, exempt from paying the whole or a part of the tax. If the exemption is withdrawn the leviable tax becomes payable. The scheme of the Federal Excise Act is different. Section 3 of the Federal Excise Act provides that services provided in Pakistan are C.A. NO.1509/2016 -: 13 :- liable to FED at the rate of 15% ad valorem “except the…services specified in the First Schedule, which shall be charged to Federal excise duty as, and at the rates, set forth therein.” Section 16(1) of the Federal Excise Act provides that “All goods imported, produced or manufactured in Pakistan and services provided or rendered except such goods and services as are specified in the First Schedule shall be exempt from whole of excise duties levied under section 3”. In other words all services provided in Pakistan are exempt from FED unless specified in the First Schedule to the Federal Excise Act. Even an activity within the definition of “services” under Section 2(23) of the Federal Excise Act is exempt from FED unless specified in the First Schedule. An assessee, therefore, does not have to apply under Section 16 of the Federal Excise Act for exemption. The services provided by the assessee are exempt if not specified in the First Schedule to the Federal Excise Act. 8. Both the Explanation to Section 3 of the Federal Excise Act and the definition of “services” in Section 2(23) thereof make it clear that for an activity to be a service leviable to FED it must be specified in the Federal Excise Act or Table II to the First Schedule thereto read with Chapter 98 of the PCT. The First Schedule to the Federal Excise Act is not to be read in isolation, rather has to be read with Chapter 98 of the PCT. Table II of the First Schedule to the Federal Excise Act broadly identifies the services and mentions the PCT Headings. Item 6 of this Table lists PCT Heading 98.12: Telecommunication Services (including all sub-headings) and states the rate of duty as 17% ad valorem. Item 6 of Table II has to be read with Chapter 98 of the PCT as required by Section 2(23) of the Federal Excise Act and the Explanation to Section 3 thereof. PCT Heading 98.12: Telecommunication Services of Chapter 98 of the First Schedule to the Customs Act is a broad general category. Under it are 65 sub-headings. Like in the orders of the C.A. NO.1509/2016 -: 14 :- DCIR, CIRA and ATIR there is no discussion in the judgment of the learned High Court on how a Heading of the PCT and its sub-headings are to be read. There is also no discussion about which sub-heading, if any, will cover TV license fee. Only at one place (paragraph No.16) in the judgment, the learned High Court seems to suggest that PCT Heading 9812.9090: “Others” may provide legal cover for the charge of FED on TV license fee. 9. The learned counsel for the respondent did not dispute that Section 2(23) of the Federal Excise Act and the Explanation to Section 3 thereof require that Table II to the First Schedule to the Federal Excise Act must be read with Chapter 98 of the PCT. She, however, vehemently argued that Section 2(23) ibid defines services and this definition read with PCT Heading 98.12: ‘Telecommunication Services’ would cover TV license fee. The main plank of her argument was that only PCT Heading 98.12 was relevant which covered all ‘Telecommunication Services’. PTV made telecasts and telecasts were received on TV sets, and telecasts and their reception on TV sets was a ‘Telecommunication Service’, therefore, it was covered by PCT Heading 98.12. Since TV License Fee was received by PTV, it must, therefore, have been received by PTV for the service of telecast. It was therefore, chargeable to FED under PCT Heading 98.12. All telecommunication services irrespective of their nature and kind, according to her, were covered by PCT Heading 98.12. Even if TV license fee or telecast did not fall within any of the sub-headings of PCT 98.12, the demand survived as it was covered by the main Heading: PCT 98.12. The sub-headings, according to her, were of no consequence. If this argument was accepted to be correct, then the definition of “services” in Section 2(23) of the Federal Excise Act which requires that its First Schedule be read with Chapter 98 of the PCT has to be disregarded. The First Schedule to the Federal Excise Act, in Item 6 of Table II mentions C.A. NO.1509/2016 -: 15 :- PCT Heading 98.12 and “all sub-headings” in parenthesis. Therefore all the sub-headings of PCT Heading 98.12 are imported into the definition through The First Schedule to the Federal Excise Act and Chapter 98 of the PCT. If the sub-headings were of no consequence, then there was no need for Parliament to provide that the First Schedule to the Federal Excise Act be read with Chapter 98 of PCT. Equally unnecessary was, the Explanation to Section 3 of the Federal Excise Act, the charging section, which provided that for the purposes of that section “services” meant the services specified in Chapter 98 of the First Schedule to the Customs Act. 10. One may explore the argument of the learned counsel for the respondent further. A number of service providers, activities and services are defined in Section 2 of the Federal Excise Act. ‘Telecommunication Services’ are not so specified. One must, therefore, proceed to examine the First Schedule to the Federal Excise Act and Chapter 98 of the PCT. Section 3 of the Federal Excise Act is the charging section which levies FED on services provided in Pakistan. The Explanation to the said section makes it clear, however, that services for the purposes of the charging section “mean the services specified in Chapter 98 of the First Schedule to the Customs Act, 1969.” FED cannot, therefore, be levied on a service which is not specified in Chapter 98 of the PCT. PCT Heading 98.12 has 65 sub-headings. A close examination of the various sub-headings of PCT Heading 98.12 makes it clear that all these deal with ‘Telecommunication Services’. Try as one may, one cannot find that any of these 65 sub-headings cover telecasts, TV sets or TV license fee. At this point it would be relevant to mention Rule 6 of the General Rules for the Interpretation of the First Schedule of the Customs Act, i.e. the PCT, which provides that “For legal purposes, the classification of goods in the sub-headings of a heading except Chapter 99 shall be determined according to the terms of those sub-headings C.A. NO.1509/2016 -: 16 :- and any related sub-heading Notes and, mutatis mutandis, to the above Rules, on the understanding that only sub-headings at the same level are comparable.” Accordingly, not being covered by any of the sub-headings to PCT Heading 98.12 read with Item 6 of Table II of the First Schedule to the Federal Excise Act, telecasts, TV sets and TV license fee are outside the charging provisions of the Federal Excise Act. If one were to accept the argument of the learned counsel for the respondent that only the Heading of PCT 98.12 is to be applied and all its sub-heading are irrelevant, it would render the specific services listed under the 65 sub-headings of PCT Heading 98.12 redundant. If the legislative intent was for PCT Heading 98.12 to cover every conceivable ‘Telecommunication Service’ there was no need to provide 65 sub-headings, listing specific telecommunication services, under it. It would make the reference to Chapter 98 of PCT in several places by the Federal Excise Act of no consequence or relevance. If the legislature intended PCT Heading 98.12 to have as wide a meaning as ascribed to it by the counsel for the respondent, then there was no need to provide 65 specific sub-headings under this PCT Heading. 11. Even otherwise, it is not possible to accept the argument of the respondent without an unnecessarily strained construction of the Federal Excise Act. The Federal Excise Act is a fiscal statute. The principles of interpreting such statutes are well settled. Some of these principles have been recently repeated in Messrs Pakistan Television Corporation Vs. Commissioner Inland Revenue (Legal), Islamabad and others (2017 SCMR 1136) which are summarised as follows:- i. There is no intendment or equity about tax and the provisions of a taxing statute must be applied as they stand; C.A. NO.1509/2016 -: 17 :- ii. The provision creating a tax liability must be interpreted strictly in favour of the taxpayer and against the revenue authorities; iii. Any doubts arising from the interpretation of a fiscal provision must be resolved in favour of the taxpayer; iv. If two reasonable interpretations are possible, the one favoring the taxpayer must be adopted; v. When a tax is clearly imposed by a statutory provision any exemption from it must be clearly expressed in the statute or clearly implied from it; vi. Where the taxpayer claims the benefit of such express or implied exemption, the burden is on him to establish that his case is covered by the exemption; vii. The terms of the exemption ought to be reasonably construed; and viii. If a taxpayer is entitled to an exemption on a reasonable construction of the law it ought not to be denied to him by a strained, strict or convoluted interpretation of the law. Applying the above principles, it is clear that telecasts, TV sets and TV license fee are not covered by the definition of services in Section 2(23) of the Federal Excise Act and Item 6 of Table II of the First Schedule to the Federal Excise Act read with Chapter 98 of the PCT. At the risk of repetition, TV license fee, telecasts and TV sets not being covered by any of the sub- headings of PCT Heading 98.12 are not subject to FED on a reasonable interpretation of the law. Being plainly outside the ambit of the charging provision they cannot be brought in by a strained construction of the law. The issue may be examined in another manner. As stated above that telecasts, TV sets and TV license fee are not within Table II of the First Schedule to the Federal Excise Act, read with Chapter 98 of the First C.A. NO.1509/2016 -: 18 :- Schedule to the Customs Act. These are not covered by any of the sub- headings of PCT 98.12. These, are, therefore, exempt from FED under Section 16 of the Federal Excise Act. The appellant is, therefore, exempt from payment of FED on TV license fee. A reasonable interpretation of the law plainly entitles it to such an exemption. It cannot be denied to it by a strained, forced or convoluted interpretation of the law. The conclusion, therefore, remains unchanged. In any case, the demand of FED on TV license fee received by the appellant is, therefore, not legal. The above principles also make clear that the Federal Excise Act being a fiscal statute has to be construed, where possible, in favour of the assessee. 12. This submission of the counsel for the respondent also runs counter to the structure of the PCT. As observed in Messrs Citibank NA Vs. Commissioner Inland Revenue (2014 PTD 284):- “This is based on and is almost identical to the Harmonized Commodity Description and Coding System ("HS System"), which has been agreed upon under an international convention and which is regulated by the World Customs Organization. The HS System is of course concerned with goods, and it comprises of 97 chapters (with one chapter, 77, being left "blank" for possible future use) wherein all manner of goods are listed and categorized. The Pakistan Customs Tariff faithfully reproduces and gives effect to this system. In addition, the HS System allows two final chapters (i.e., 98 and 99) to be used for national purposes and Pakistan has utilized Chapter 98 for "services". Even a quick glance shows that Chapter 98 replicates the system of classification adopted for goods under the HS System. Now, the chapters of the HS System are preceded by certain "General Rules for the interpretation of the Harmonized System" ("General Rules"). These rules are incorporated in the Pakistan Customs Tariff and therefore have the force of law. Although the rules are concerned with goods, in our view they C.A. NO.1509/2016 -: 19 :- may, subject to suitable adaptation, also be used for the purposes of Chapter 98. This is so because of the close correspondence between the classification system under the HS System and that used in Chapter 98. Rule 6 of the General Rules has been understood to mean, inter alia, that in those headings under which sub-headings are to be found, the classification is to be on the basis and in terms of the sub- headings. [Emphasis Supplied] When this Rule is applied to PCT Heading 98.12 it is absolutely clear that it is the sub-headings under PCT Heading 98.12 that are to be applied. Such an approach is in conformity with the HS System, and is, therefore, the correct approach to applying Chapter 98. 13. Another argument advanced by the learned counsel for the respondent and which found favour with the learned High Court was that even if TV license fee was not covered by any of the specific sub-headings of PCT Heading 98.12 it would be covered by PCT 9812.9090: “Others”. This argument ignores the scheme of division of specific services under the various sub-headings of PCT Heading 98.12. The various types of telecommunication services are bunched together in separate groups. At the end of each bunch one finds the entry “Others”. The services under the sub- headings of PCT Heading 98.12 are in 8 groups. And the sub-heading “Others”, therefore, appears eight times under PCT Heading 98.12. For instance, the first group consists of various kinds of telephone services. These are listed from PCT 9812.1000 to 9812.1970. At the end is PCT 9812.1990: “Others”. The last group is of sub-headings PCT 9812.9000: ‘Audio text services’, PCT 9812.9100: ‘Teletext services’, 9812.9200: ‘Trunk radio services’, PCT 9812.9300: ‘Paging services’, PCT 9812.9400: ‘Voice paging services’, PCT 9812.9410 ‘Radio paging services’, PCT 9812.9490: C.A. NO.1509/2016 -: 20 :- ‘Vehicle tracking services’ and 9812.9500: ‘Burglar alarm services’, followed by PCT 9812.9090: “Others”. The sub-heading “Others” is, therefore, to be read ejusdem generis with the preceding entries in the group. It will apply to and cover only such services which are similar to the ones specifically described before it. It cannot include every conceivable telecommunication service. Reading the sub-heading “Others” to include all kinds of telecommunication services would render all the specific sub-headings otiose. Such an interpretation being clearly flawed cannot be sustained. 14. There is yet another aspect of the matter. TV license fee is levied under the Wireless Telegraphy Act, 1933 (Wireless Telegraphy Act). Section 2(2) of the Wireless Telegraphy Act defines “wireless telegraphy apparatus” as under:- “any apparatus, appliance, instrument or material used or capable of use in wireless communication, and includes any article determined by rule made under Section 10 to be wireless telegraphy apparatus, but does not include any such apparatus, appliance, instrument or material commonly used for other electrical purposes, unless it has been specially designed or adapted for wireless communication or forms part of some apparatus, appliance, instrument or material specially so designed or adapted, nor any article determined by rule made under Section 10 not to be wireless telegraphy apparatus.” Section 3 of the Wireless Telegraphy Act provides that “no person shall possess wireless telegraphy apparatus except under and in accordance with a license issued under this Act” [Emphasis supplied]. Section 5 thereof designates the authority “competent to issue licenses to possess wireless telegraphy apparatus…” [Emphasis supplied] Section 6 makes possession of wireless telegraphy apparatus in contravention of Section 3 ibid an offence. C.A. NO.1509/2016 -: 21 :- 15. The Television Receiving Apparatus (Possession & Licensing) Rules, 1970 (Rules) were framed under Section 10 of the Wireless Telegraphy Act. Rule 3(3) of the Rules, requires the “holder” to obtain a license “immediately after he comes into possession of a television set” [Emphasis supplied]. Rule 2(e) of the Rules defines a “holder” as “any person for the time being in possession of a television receiving apparatus” [Emphasis supplied]. Rule 2(i) of the Rules defines “Television Receiving Apparatus” as “any apparatus…capable of being used for receiving the telecasts…and includes any apparatus which is temporarily incapable of being so used by reason of a defect…” [Emphasis supplied]. Although now the collection of TV license fee is made through electricity bills, the Wireless Telegraphy Act and the Rules make the Parliamentary intention clear. The license fee is paid not for any service provided by the appellant but by the holder of the TV set for its possession. The taxable event is not the provision of any service by the appellant. It is the possession of a television set by the holder. The Government of Pakistan allows the fee so collected to be used by the appellant for its maintenance and operations. The State has an interest in owning and operating a television corporation. This requires money. It, therefore, decided to levy license fee, collect it and allow the appellant to receive and use it for its maintenance and operations. It is for this reason that the amount of license fee received by the appellant is disclosed in its financials. The contention of the learned counsel for the respondent that the receipt of fee by the appellant establishes that it is subject to FED is not correct. All that it establishes is that the Government of Pakistan which has levied the fee has decided to allow the appellant to receive it and to use this revenue for its maintenance and operations. For FED to be levied on this amount it must further be established that it is a “service” as defined in Section 2(23) of the Federal Excise Act and is subject to the charge levied C.A. NO.1509/2016 -: 22 :- under Section 3 thereof which, as discussed above, is clearly not the case. TV license fee not being the product of any service provided by PTV, FED cannot be levied on it. 16. The foregoing are the detailed reasons for our short order of even date which reads as under:- “For the reasons to be recorded later, this appeal is allowed and the impugned order is set aside.” CHIEF JUSTICE Islamabad, the 23rd of October, 2018 Not approved for reporting JUDGE JUDGE M. Azhar Malik/*

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE MUSHIR ALAM CIVIL APPEALS NO. 150, 151 AND 152 OF 2006 (Against the judgment dated 22.11.2005 of the Peshawar High Court, Peshawar passed in Income Tax References No.117, 118 & 119 of 2003) Lucky Cement Ltd., having its offices at Lakki Marwat, Dera Ismail Khan …Appellant(s) (in all appeals) VERSUS Commissioner Income Tax, Zone Companies, Circle-5, Peshawar …Respondent(s) (in all appeals) … For the appellant(s): (in all appeals) Mr. Khalid Anwar, Sr. ASC Mr. M. S. Khattak, AOR For the respondent(s): (in all appeals) Ghulam Shoaib Jally, ASC Raja Abdul Ghafoor, AOR Date of hearing: 31.03.2015 … JUDGMENT MIAN SAQIB NISAR, J.- The main question involved in these matters is:- whether the income received by the appellant from the investment(s) made by it of its surplus money into various profitable ventures/schemes and the amounts thus realized as profits thereupon amount to income from business or income from other sources. The facts relevant for the purposes of resolution of the noted question are:- the appellant is a public limited company (listed at the stock exchange). The main and primary object of the appellant was/is to setup/establish and run a cement Civil Appeals No.150, 151 & 152 of 2006 -: 2 :- factory, however, in its business prudence, the appellant decided to not seek and avail any financial support from outside (i.e. financial institutions etc.), rather it relied upon its own resources (i.e. the deposits/contributions made by the shareholder etc). It may be pertinent to mention here that for the accomplishment of the above venture (cement factory), the appellant had collected and possessed in its reserves an amount of rupees 3.44 billion, which was not required to be used immediately (in one go) in lump sum and thus as the amount was lying unutilized with the appellant-company in banks or otherwise, it (appellant) decided to invest the said amount in certain profitable schemes through fund management process/arrangements. In this manner, the investments were made and certain profits were earned by the appellant during the financial years 1994-95, 1995- 96 and 1996-97. The assessing officer (Deputy Commissioner Income Tax) vide order dated 24.3.1997 assessed the income so received by the appellant as from other sources under Section 30(2)(b) of the repealed Income Tax Ordinance, 1979 (note: the rate of tax on such income was different than the rate of tax on income generated from the business of the assessee). However, the Commissioner on appeal through its order dated 30.10.1997 reversed the aforesaid decision and considered the said amount as the business income of the appellant. The department challenged this decision before the Tribunal which appeal was accepted on 29.9.2001, and by setting aside the order of the Commissioner Appeals, the order of the Assessing Officer was restored. The appellant unsuccessfully assailed the above (two) decisions vide tax references before the Peshawar High Court which were dismissed through the impugned judgment dated 22.11.2005. Civil Appeals No.150, 151 & 152 of 2006 -: 3 :- Leave in these cases was granted on 24.1.2006 to consider the following points:- “i) Whether earning from investment of surplus money in the portfolio and fund management ventures and such other activities of the petitioner would be income from the business as profit or interest? ii) Whether learned Division Bench of the High Court has erred in law in failing to consider that the Tribunal has erred in law treating the net amount received by the petitioner from portfolio and fund management ventures and other activities as an interest? iii) What would be the nature of relationship between the investor and the Bank when the latter is not responsible in case of any loss in case of investment? iv) Whether learned Division Bench of the High Court failed to appreciate that the business undertaken by the petitioner of portfolio and fund management ventures/activities was inextricably linked to the construction of cement plant and such surplus funds earned from the said ventures were specifically earmarked for construction of cement plant.” 2. Mr. Khalid Anwar, learned Sr. ASC, by relying upon Article III of the appellant-company’s Memorandum of Association has argued that though the primary object and purpose of the company was to establish a cement factory and this would be the ultimate business of the appellant, however since the constitution i.e. the Memorandum of Association of the company permits investments to be made for the purposes of its (appellant) business to generate income, therefore any profits earned or income generated and received through such investments should be taxed as income from business, as opposed to income from other sources. For the Civil Appeals No.150, 151 & 152 of 2006 -: 4 :- ease of reference, he has referred to relevant clauses of Article III of the Memorandum of Association of the appellant-company, which are reproduced below. Clause 1 of Article III ibid reads as follows:- “To carry out the design, engineering, procurement, manufacturing, delivery, erection, installation, testing and commissioning at site of a new, state of the art, plant including all auxiliary and ancillary equipment, complete in all respects for the purpose of manufacturing PORTLAND CEMENT as per Pakistan/British standard specifications, including all mechanical and electrical equipment and controls to ensure a smooth and continuous production clinkers and corresponding quantity of ordinary PORTLAND CEMENT.” Clause 6 of Article III ibid reads as follow:- “To invest or otherwise deal with the money of the Company in such manner as may from time to time be determined.” Clause 36 of Article III ibid reads as under:- “It is expressly declared that the several sub-clauses of this clause and all the powers expressed therein are to be cumulative but in no case unless the context expressly so requires is the generality of any one sub-clause to be narrowed or restricted by the name of the Company or by the particularity of expression in the same sub- clause or by the application or any rule of construction such as the ejusdem generis rule, and accordingly none of such sub-clauses or the objects therein specified or the power thereby conferred shall be deemed subsidiary or auxiliary, merely to the objects mentioned in any other sub-clause of this clause and the Company shall have full power to exercise all or any of the powers conferred by any provisions of this clause in any part of the world.” It is thus submitted that Clause 6 ibid specifically and independently provides and enables the company to make such Civil Appeals No.150, 151 & 152 of 2006 -: 5 :- investment in addition, the said clause when read in light of residuary Clause 36 ibid, makes the investments a permissible business activity of the appellant, notwithstanding its primary business of establishing the cement factory, therefore all such income received by the appellant shall be taxable as the income from business and not from any other source. It is also argued that the learned High Court has unnecessarily relied upon the judgment of this Court reported as The Commissioner of Income-Tax, East Pakistan, Dacca Vs. The Liquidator, Khulna-Bagerhat Railway Company Ltd., Ahmadabad (PLD 1962 SC 128). Such decision is distinguishable on its own facts, and has no relevance and application to the proposition in hand. It is further urged that it is always the intention of the assessee which is germane and expedient for the purposes of deciding and determining whether the income generated by it (the assessee) is from the business of the assessee or from any other source. It is contended that even the earning of interest on investment(s) and the deposits as such, could also be a business of a company. And the apt example of this is, where investments are made by the banks etc. in certain treasury bonds etc. and the income is generated on that account, which for all intents and purposes shall be the income from business. In support of his plea(s), the learned counsel has made reference to the judgment of this Court reported as The Commissioner of Income-Tax, West Zone, Karachi and another Vs. Messrs Khairpur Textile Mills Ltd. and others (1989 SCMR 61). It is also argued that since Clause 36 ibid is a residuary clause and on account of the interpretation assigned to such a clause (residuary Civil Appeals No.150, 151 & 152 of 2006 -: 6 :- stipulation/provision), the investment(s) made by the appellant undoubtedly were a business investment and therefore, the same cannot be termed to be investment(s) beyond the scope of appellant’s business and thus the income from any other source. In this regard, the judgments cited are Commissioner of Income- Tax, U.P. Vs. Basant Rai Takhat Singh ((1933) ITR 197), Commissioner of Income-Tax Vs. Govinda Choudhury and Sons ((1993) 200 ITR 881) and Asiatic Agencies Limited, Karachi Vs. Commissioner of Income-Tax (1967 PTD 286). Learned counsel has further argued that even a single transaction can be taken as a business of the assessee and it is not necessary that there should be a series of transactions. Support is drawn from Kanwarlal Manoharwal Vs. Commissioner of Income-Tax, Madras ((1975) 101 ITR 439) and K. Nallathambi Pillai Vs. Commissioner of Income-Tax ((1975) 98 ITR 13) for the above submission. 3. Contrary to the above, learned counsel for the respondent has made reference to Clause 37 of Article III of the Memorandum of Association which reads as under:- “Notwithstanding anything contained in the foregoing object clauses of this Memorandum of Association, nothing herein shall be construed as empowering the Company to undertake or indulge in the business of banking, finance, investment, leasing or insurance, directly or indirectly or any unlawful operations.” On the basis of above, it is argued that this being a prohibitory clause, no investments can be made by the appellant and the appellant cannot be said to have made the investment(s) under question in pursuit of its business venture and resultantly Civil Appeals No.150, 151 & 152 of 2006 -: 7 :- the amount of the profit accruing to the appellant is assessable as income from other sources. It is also argued that according to Clause 1 of Article III of the Memorandum of Association, the primary/main and key object of the appellant is to establish a cement factory and even if it is considered that the investment business is permissible, since the same is not ancillary to the main business object of the appellant-company, any income generated through such investment business is to be taxed as income from other sources. 4. Heard. Before resolving the proposition in hand, we find it expedient to briefly state the nature and legal status/position of Memorandum of Association (MOA) and Articles of Association (AOA) of a company, the purpose and object of the same, the rules of its application and the construction/interpretation of such a document. In this regard, several judgments of superior courts have shed light and from the gist thereof, it can be held that the MOA and Articles of Association when read as a whole are the constitution of the company. MOA provides and prescribes the object(s) and the purpose(s) for which the company has been established and constituted, with specific reference to the business and the avocations which it can conduct, carryon and undertake. While the AOA are the organizational and governance rules of the company which primarily deal with the management affairs. There are judgments of the superior Courts to the effect that anything done by a company (as the company is a juristic person and has to act through natural person i.e. its management) which is beyond the scope of its MOA is ultra vires and thus cannot be given any legal sanctity. In order words, a Civil Appeals No.150, 151 & 152 of 2006 -: 8 :- company cannot engage in a business which is not fairly covered by any of its independent objects, or such objects which are ancillary and incidental to those for which a company has been created and such MOA is duly recognized and accepted, by the regulatory body(ies) meant for the incorporation of a company and oversight thereof. It has been noticed and experienced by us for various MOAs of different companies that in order to avoid any of its venture being declared as ultra vires of the object, besides the main object of the company and its ancillary purposes, the latest trend is that the company shall incorporate in the MOA certain other objects as well which are aloof and independent of its main object/business; this is also so because the company might at some point of time like to undertake some another or more business, but would be precluded from doing so, because of the lack of object and it is difficult to have the MOAs changed and altered frequently. A company thus may have a primary object and purpose, but still there may also be several other objects mentioned in the objects clause, and after proper construction of such objects, by resorting to the relevant rules of interpretation, it should be considered whether those are ancillary to the main object of the company or can be held to be independent of each other. It may be pertinent to mention here that MOA of a company in law should be read and construed liberally and be given a wide meaning through literal interpretation of the clause. Since objects are considered to be the permissive activities which a company can undertake in order to do its business, the same should not be given a restrictive Civil Appeals No.150, 151 & 152 of 2006 -: 9 :- meaning. In any case, rigid construction of the said document, unless and until inevitable and insurmountable, must be avoided. 5. In the context of the above, the question whether in the instant case, the investments made by the appellant-company are pursuant to its business or such investments and the profits derived therefrom are from other sources, now needs to be determined. But before doing that, we would like to reproduce the provisions of Section 30(2)(b) of the Income Tax Ordinance, 1979, which are as follows:- 30. Income from other sources:- ……. (2) In particular, and without prejudice to the generality of the provisions of sub-section (1), the following incomes shall, save as otherwise provided in this Ordinance, be chargeable under the head “Income from other sources”, namely: …… (b) “interest, royalties and fees for technical services” 6. From Clause 1 of Article III of the appellant-company’s MOA, as reproduced above, it is clear that the primary and main object of the appellant-company is to install, establish and run a cement manufacturing plant. This, however, is not the only object of the appellant-company, rather there are numerous other ventures which are permissible under the objects clause of the company. Some are ancillary, but some are vividly and undoubtedly independent; and Clause 6 ibid amongst others falls within the latter category. According to Clause 6, it is unequivocally clear that the company is empowered to, and one of Civil Appeals No.150, 151 & 152 of 2006 -: 10 :- its purposes and objects is “To invest or otherwise deal with the money of the Company in such manner as may from time to time be determined”. From a plain reading of this clause, it is manifest that investment of the money of the company, surplus or otherwise, for the purpose of earning income, would be within the pail of permissible business activities detailed in the MOA; the decision as to where, how and to what extent this money is to be invested, in which scheme and for what profit etc. is left for the management to decide in its commercial prudence and in the best interest of the company. Notwithstanding the above clause, in clause 36 (supra), which is a residuary clause, it has been specifically stated that all the aforesaid clauses shall be held to be independent objects of the company and no objects stated in any sub-clause shall be deemed or construed to be subsidiary or auxiliary to any objects mentioned in any other sub-clause and that the Company shall have full power to exercise all or any of the powers conferred by any provisions of this clause in any part of the world. The only exception to this general rule of interpretation of the MOA of the appellant-company as envisaged by Clause 36 is where the scope of sub-clause or object is expressly narrowed down or made dependent on any other object/sub-clause. Therefore, while reading Clause 6 in light of Clause 36, it may deduced that Clause 6 has been considered and held to be an independent object of the company as well. 7. In light of the above, suffice it to say that Section 30(2)(b) is only applicable where the investment of money by a person has not been made as part of his business activities. Where Civil Appeals No.150, 151 & 152 of 2006 -: 11 :- money has been invested by a person in his business and profit is generated on such an investment, that profit shall, for all intents and purposes, be considered to be the profit earned from business and not from other sources. To elucidate the above, it may be mentioned that if a person is engaged in a business of sale and purchase of paintings and pursuant to his business activity, he buys a painting worth Rs.100/-, sells that out for Rs.150/-, and thus earns Rs.50/- as profit, such profit of Rs.50/- shall be considered to be part of the income generated from his business. On the contrary, if a person, merely interested in collecting paintings for his personal collection, purchases one but later sells it at a profit margin, the profit/income earned by such person shall be deemed to be income from other source as opposed to income from business. The reason for this being that his purchase of the property i.e. paintings is only for the purposes of his private collection and not as part of any commercial/business activity he is engaged in. Therefore, it is the object/purpose for which investments are made which is relevant and the object, in the case of a company, has to be ascertained from its Memorandum of Association and in the case of any other individual, from the nature of his business activity. 8. As regards the judgment reported as The Commissioner of Income-Tax, East Pakistan, Dacca Vs. The Liquidator, Khulna-Bagerhat Railway Company Ltd., Ahmadabad (PLD 1962 SC 128), the learned High Court has heavily relied upon this verdict, but to our consideration, the judgment is not germane to the facts and circumstances of the case Civil Appeals No.150, 151 & 152 of 2006 -: 12 :- in hand. The facts in which the aforesaid judgment was rendered were that the respondent was a railway company which had entered into an agreement with Secretary of State for India in- council in 1916 for construction and management of railway in what was previously East Pakistan. Later on in the year 1948, the railway was acquired by the Government of Pakistan. When the income tax return for the relevant period was filed by the respondent, exemption was claimed under subsections 3 and 4 of section 25 of the Income Tax Act. The question before the income tax officer was whether income from interest from monies kept in banks earned by the company during the relevant assessment year would be classified as income from business or from other sources. The income tax officer deemed such interest to be part of the legitimate business activities of the company. This decision however was reversed on appeal and the decision of the appellate authority was upheld throughout. The Supreme Court while hearing the matter held that per Article 2 and 3 of Memorandum of Association of the respondent-company, main business was construction and upkeep of the Railway system and though Article 26 did authorize the company to lend or invest monies belonging to it, because such an activity was not company’s (railways) normal business. The Supreme Court in that case concluded that each case must be decided on its own facts, and in that case the circumstances brought out in the evidence did not indicate that the receiving of interest on Invested moneys was really included in the business-income of the company. The supra case is distinguishable from the one in hand because in the instant case, when the various Civil Appeals No.150, 151 & 152 of 2006 -: 13 :- clauses of the MOA of the appellant-company are construed and applied specifically in the presence of Clause 36, it is clear that Clause 6 is an independent object of the company and not a mere authorization available with the appellant-company to make investments which may be narrowed down or confined or deemed auxiliary to Clause 1 ibid, which factor it seems was absent in the afore cited case (emphasis supplied). 9. Now attending to the question raised by the counsel for the respondent that the provisions of Clause 37 ibid of the MOA specifically prohibits the appellant-company from making any investment of its money and carrying on any activity having no nexus to its main object for generating income. It may be held that unambiguously and undoubtedly the aforesaid is a prohibitory clause, it is couched in the negative language and therefore under the law of interpretation of statutes, such a provision of law and/or a clause appearing in a document (such clause in the MOA) should be construed and applied strictly. It should be assessed and ascertained as to what is the real intent and object behind such a clause, what mischief it has to suppress, circumvent and curb. Besides, such prohibitory clause unless no other interpretation is possible cannot be used as a tool for obliterating any other specific and express provision of the statute or document, (in this case MOA) which provision/clause unequivocally, categorically and clearly provides a particular act and object of the company as its permissible business, which otherwise is also lawful. It should not be construed and interpreted that a prohibitory clause in a statute/document is prescribed and is designed to render any other Civil Appeals No.150, 151 & 152 of 2006 -: 14 :- specific provision/clause as nugatory, rather for all intents and purposes the rules of harmonious interpretation should be adhered and resorted to and all possible efforts should be made to save each and every provision of the statute/clauses of MOA (as the case may be). In this context we find that Clause 6 supra in very clear and in unambiguous terms prescribes that the appellant-company can make an investment of its money. The precise words are “To invest or otherwise deal with the money of the Company in such manner as may from time to time be determined”. The word “deal” appearing in the clause is disjunctive and notwithstanding the word invest (note: which shall be construed in the preceding part of this opinion not hit by Clause 37) by itself permits the company to administer and apportion its money by ways of putting it in any profit bearing scheme and venture and earn income thereupon. Anyhow while interpreting the two clauses, we ask a question to ourselves that if Clause 37 was not there in the MOA, whether the company could invest its monies as its business venture as per the force of Clause 6 ibid. The answer we find is in the affirmative i.e. YES. Thus the question for consideration and resolution now is if Clause 37 has made the otherwise permissible business of the company as impermissible, the reply is in the negative, NO. For the above reply, the intent and the object of Clause 37 needs some elaboration, and the relevant comments in this context are:- that regardless of the empowerment of the company to carry out its objects clearly mentioned in the preceding part of the MOA; Clause 37 when read independently and in isolation of other clause it does debar the company from Civil Appeals No.150, 151 & 152 of 2006 -: 15 :- undertaking and indulging in the business of banking, finance, investment, leasing or insurance or any other unlawful business. Now for a moment excluding two words appearing in this clause from consideration i.e. finance and investment, if the clause is read, it is very much clear that a company has been precluded and denuded of the authority to undertake (i.e. “to take on an obligation or task; to give a formal promise; to make oneself responsible for (a person, fact, or the like); a promise, pledge, or engagement” and indulge i.e. “to become involved in any activity”), and indulge with the business (this is an important word in the clause) of banking, leasing or insurance. The word business unmistakably is also directly relevant to the two other components of this clause i.e. finance and investment, which connotes that the company shall not enter into any business of financing, meaning thereby to undertake and indulge into the business of financing i.e. providing money to others which concept in the commercial parlance and sense is understood to act and function as a financing company, or a company indulged in the business of lending money. Likewise, there is a prohibition and a bar per this clause that the appellant shall not act as an investment entrepreneur, or an investment company, by attracting and calling upon the public or class of people to invest money with it and pay investors, the interest, profit etc. on such investment, so as to act as an investment institution. Clause 37 seemingly has been purposely added in the MOA with the clear intent, and as an extra precaution to eliminate any doubt that a company while misinterpreting any of its object clause might not undertake and indulge into such business which is Civil Appeals No.150, 151 & 152 of 2006 -: 16 :- expressly covered and falls within the prohibitory domain thereof. But where a business of the company is covered expressly by anyone or more than one of its lawful objects, and do not clearly and unambiguously fall within the prohibitory clause, it is held to be beyond the pale of the said clause i.e. 37. Therefore, we are clear in our mind that this clause in no way affect, control or annul the specific object Clause 6 of the MOA, otherwise it is not conceivable that on the one hand the company has assigned to itself a lawful purpose and business in the shape of Clause 6, but on the other hand itself has nullified the said empowerment by Clause 37. Thus for the purposes of interpreting the two clauses the rule of harmonious interpretation as mentioned above should apply and both be saved for the purposes of serving their own object and purpose. Before parting with this point it may be relevant to mention here that for the purposes of banking; leasing and for insurance the licences are required and the above clause had such intent behind and for financing and investment as those are an unlawful business which imperially experienced and it is a publicly known fact has resulted in bid and critical scams, therefore the prohibition was placed in the MOA for such business with a purpose of preventing that. In fact the purpose of Clause 37 is to discourage, unregulated collection of funds from the public and safeguard against financial scams. 10. In light of what has been discussed above, we are clear in our mind that the amount of profit earned by the appellant- company from the investment made in the various schemes/banks is pursuant to its business activities and, therefore, this profit Civil Appeals No.150, 151 & 152 of 2006 -: 17 :- cannot be termed to have been accrued from any other source so as to attract the application of Section 30(2)(b) i.e. income from other source. These appeals, thus, are allowed, the impugned judgment of the learned High Court and that of the Income Tax Tribunal is set aside. The question of law thus involved in the matter accordingly stands answered. JUDGE JUDGE JUDGE Announced in open Court on ___________ at ____________ Approved For Reporting Waqas Naseer/* Civil Appeals No.150, 151 & 152 of 2006 -: 18 :- SH. AZMAT SAEED, J.- The brief facts necessary for adjudication of the lis at hand are that the Appellant is a limited Company, incorporated under the Companies Ordinance, 1984. The primary object of the Company was to setup a Cement Manufacturing Plant. It was incorporated on or about 18.09.1993 and commenced its business on 22.11.1993. It appears that from its surplus funds, investments were made in various Banks and Financial Institutions. Such investment was yielded income in the Assessment Years 1994-95, 1995-96 and 1996-97. In the audited Statement of Accounts, the Appellant set- off the income so realized against its unallocated capital expenditure. The Deputy Commissioner Income Tax (DCIT) issued a notice to the Appellant under Sections 61/62 of the Income Tax Ordinance, 1979 to show cause as to why the income realized from the aforesaid investments of surplus money should not be treated as “income from other sources” in terms of Section 30 of the Income Tax Ordinance, 1979. Explanations were offered by the Appellant, which was not accepted. However, the CIT Appeals accepted the contentions of the Appellant whereafter the Department invoked the jurisdiction of the Tribunal, which vide its decision dated 29.9.2001 held that the income realized by the Appellant from the surplus fund placed Civil Appeals No.150, 151 & 152 of 2006 -: 19 :- in the Financial Institutions was to be treated as “income from other sources”. The Appellant filed three separate Tax References i.e. T.R. Nos.117 to 119 of 2003 before the learned Peshawar High Court, against the consolidated order of the Tribunal. The said Petitions were dismissed vide judgment impugned dated 16.11.2005. Whereafter, the Appellant invoked the jurisdiction of this Court by filing Civil Petitions Nos.38 to 40 of 2006 wherein leave to appeal was granted vide Order dated 24.01.2006. 2. Upon hearing the learned counsels and after perusal of the available record, it is evident that it is common ground between the parties that the amounts realized by the Appellant Company from the funds placed with the various Banks and Financial Institutions is income. The only matter in controversy is whether such amounts are to be treated as “Business Income” or “income from other sources”. It is the case of the Appellant that by virtue of its Memorandum of Association (MOA), more particularly, sub-clause 6 thereof the Appellant Company is authorized and entitled to invest its money and such venture is one of the declared objects of the Company. Furthermore, each and every object of Company as set out in the various sub- clauses of the MOA, by virtue of sub-clause 36 must be Civil Appeals No.150, 151 & 152 of 2006 -: 20 :- construed independently unrestricted by any other sub-clause, including sub-clause I, identifying the main Business of the Company, sub-clauses 6 and 36 are reproduced herein below for ease of reference: “6. To invest or otherwise deal with the money of the Company in such manner as may from time to time be determined.” “36. It is expressly declared that the several sub-clauses of this clause and all the powers expressed therein are to be cumulative but in no case unless the context expressly so requires is the generality of any one sub- clause to be narrowed or restricted by the name of the Company or by the particularity of expression in the same sub-clause or by the application or any rule of construction such as the ejusdem generis rule, and accordingly none of such sub-clauses or the objects therein specified or the power thereby conferred shall be deemed subsidiary or auxiliary, merely to the objects mentioned in any other sub-clause of this clause and the Company shall have full power to exercise all or any of the powers conferred by any provisions of this clause in any part of the world.” 3. While, on the other hand, it is the case of the Department that all the sub-clauses of the MOA are qualified by sub-clause 37, which in no uncertain terms states the object clauses of the MOA cannot constrained to empower the Company to indulge in inter alia the Business of Investment. Thus, the income derived by the Company from the investment in Banks and Financial Institutions cannot be deemed to be Civil Appeals No.150, 151 & 152 of 2006 -: 21 :- income derived from the “Business” of the Company but in fact is “income from other sources”. For ease of reference, sub-clause 37 is reproduced hereunder: “37. Notwithstanding any thing contained in the foregoing object clauses of this Memorandum of Association, nothing herein shall be construed as empowers the Company to undertake or indulge in the business of banking, finance, investment, leasing or insurance, directly or indirectly or any unlawful operations.” 4. The MOA of a Company is undoubtedly its Charter, which identifies the objects of the Company the business to be undertaken and the powers conferred upon the Company. Subject to the tenor of the MOU, one mode of interpretation the same would be to identify the primary or normal business of the Company and treat all other powers enumerated therein as pertaining or subservient to the such normal business and any income derived through exercise of such incidental powers was not treated as Business Income for tax purposes. Reference in this behalf may be made to the judgment of this Court, reported as Commissioner of Income Tax, East Pakistan Dacca Vs. The Liquidator, Khulna Bagerhat Railway Company Limited, Ahmadabad (PLD 1962 SC 128), wherein it has been held as follows: Civil Appeals No.150, 151 & 152 of 2006 -: 22 :- “We have considered the various Articles by which this Company was governed. We have no hesitation in agreeing with the view of the High Court that the normal business of the Company was the construction and the running of the Railway and not investment of its moneys on interest. Other powers were also given to the Company by the Articles of Association, but it is not contended that all those powers pertained to the earning of normal business income. If the Company, instead of retaining its surplus moneys in idle condition, invested them under the powers given to them by their Articles of Association, it would not follow that the income so derived would be part of the Company’s normal business income. Each case must be decided on its own facts and, in the instant case, the circumstances brought out in the evidence do not indicate that receiving of interest on invested moneys was really included in the business income of the Company.” 5. A Company can be incorporated to carry on multiple business. Furthermore, the object clauses of the MOA can be scribed so as to be read independently, unfettered by the other clauses, including the clause identifying the primary or normal business as has been attempted to be done in the instant case through sub-clause 36 reproduced hereinabove. But, be that as it may, we cannot ignore or avoid giving effect to sub-clause 37 (reproduced herein above). The said sub-clause is prefixed with the word “Notwithstanding” which defines in Black’s Law Dictionary Ninth Edition to mean “Despite” or “in spite of”. Civil Appeals No.150, 151 & 152 of 2006 -: 23 :- 6. On a plan reading, sub-clause 37 states in unequivocal terms states that in spite of anything contained any of the object clauses (including clause 6 and clause 36) nothing therein shall continued to empower the Company to undertake or indulge in the Business of inter alia Investment. Such is the clear and unambiguous import and meaning of sub-clause 37. To attribute to the said sub-clause any other meaning would require inflicting extreme violence on the plain language. In the circumstances, the accumulative effect of the MOA, more particularly, sub-clause 6, 36 and 37, which read together would be that the Appellant Company is empowered to invest its money but such a transaction cannot be deemed to be Business of Company; consequently, the income derived from such investment cannot qualify as Business Income and therefore must fall in the category of “income from other sources” as has been correctly held by the Tribunal and the High Court by way of the impugned judgment. Hence, these Appeals are liable to be dismissed. Judge Civil Appeals No.150, 151 & 152 of 2006 -: 24 :- Mushir Alam, J-. I had the privilege and benefit of reading the opinion of two very learned brothers (Mian Saqib Nisar, J and Sh. Azmat Saeed, J). I concur with the conclusion drawn by my learned brother Justice Sh. Azmat Saeed. However, I would like to supplement my own reasons for the same. 2. Facts of the case are straightforward and simple. Appellant- Lucky Cement Ltd, which is a public limited company, with authorized capital of Rupees Three Billion was incorporated on or about 18.9.1993 for the purpose of inter-alia to setup a cement plant to manufacture “Portland Cement”. To set up cement plant, Appellant had raised capital/funds, during the period of construction of cement plant, surplus funds not immediately required by it, were invested in various financial institutions. Period of investment comprised of three assessment years i.e. 1994-95, 1995-96 and 1996-97. Investments of funds were specifically permitted by Clause 6 of its Article and Memorandum of Association. For the subject three assessment years, no business was carried out as the cement plant was under construction. Appellant, however, declared income, in all three assessment years, earned from interest (earned through Pak Rupee Currency investment and Foreign Currency Investments). In the audited statement of account, the Appellant set off the aggregate of the sum so realized from the financial institutions against unutilized capital expenditure, which also included the financial charges and capitalized the balance claiming to have reduced the project cost. 3. The Deputy Commissioner of Income Tax, Circle-18, Zone-A, Peshawar (DCIT) rejected the claim of Appellant that the interest income was not liable to be taxed vide order dated 24.07.1997 and assessed the interest income under Section 30 (2)(b) of the Ordinance, 1979 so received by it under the head “from other sources.” It was held that “the Company does not enjoy exemption under any clause of the 2nd Schedule to the Income Tax Ordinance, 1979”. It was further held “that income earned on account of income on interest and other investments are liable to tax and is treated as “income from other sources”. It may be observed that interest income earned from Foreign Currency investment was not taxed being exempted vide Section 5 of the “Protection of Economic Reforms Act, 1992. However, the Commissioner of Income/Wealth Tax, Appeals [CIT (A)], on Civil Appeals No.150, 151 & 152 of 2006 -: 25 :- Appeal by the Appellant company, reversed the finding of the DCIT, vide order dated 30.10.1997 and, held that “Income earned was directly related to the main business of setting up of cement project”, hence “the appellant had correctly offset the said income against the cost of the project”. Income Tax Appellate Tribunal (ITAT) accepted the Appeal filed by the CIT(A), placing reliance on the case of Commissioner of Income Tax, East Pakistan, Dacca v. The Liquidator, Khulna Bagerhat Railway Company Ltd. Ahmadabad (PLD 1962 SC 128) and, held that the main business of the Assessee is to earn income from manufacture and sale of cement and though clause 6 of the Article of Association, allows the Company to invest surplus money but in view of the observation in the cited case, it cannot be included in the normal business of the respondent (Lucky Cement), which were unsuccessfully subjected to Tax References No.117, 118 and 119 of 2003 by the Appellant company under Section 133 of the Income Tax Ordinance, 2001. All the three References were dismissed by the Peshawar High Court vide impugned judgment dated 22.11.2005 (reported as Lucky Cement v. CIT Zone Companies Circle Peshawar 2006 PTD 578). Leave in all the three cases was granted vide order dated 24.1.2006, which has been reproduced in the opinion of my learned brother (Mian Saqib Nisar, J) and thus need not be reiterated herein. 4. Pivotal question that clichés the controversy in hand is whether the income (interest) earned by investing surplus fund not immediately required by the Appellant, during the period of construction of cement plant, in various financial institutions, either falls under the head “Income from business and profession per Section 15(d) and chargeable to tax under Section 22 or “Income from other sources” and chargeable to tax under Section 30 of the Ordinance, 1979. 5. Total income of the Appellant-company under the Ordinance, 1979 is chargeable to tax under Section 9 thereof. Head of income for the purpose of charging tax and computation of total income are classified in six sub-heads under Section 15 of the Ordinance, 1979, manner of computing income on each head is further detailed in separate provision as mentioned in the tabulation below. Head of income Charging Provision U/s 15 of Ordinance, 1979 a). Salary …………………………………………….Section 16. Civil Appeals No.150, 151 & 152 of 2006 -: 26 :- b). Interest on Securities ……………………Section 17. c).Income from house property……………………..Section 19. d).Income from business and profession…..……Section 22. e).Capital Gain …………..………………………………Section 27. f). Income from other sources….……………………Section 30. 6. As noted above, computation of income falling under any of the heads as enumerated above is chargeable to tax under provision specified against each head. Admissible and inadmissible allowances and deductions are catered for each of the six sub-heads of income separately under the Ordinance, 1979. Any exemption, concession, deduction and or adjustment or set off on account of expenditure is permissible as per provisions of the Ordinance, 1979 and not otherwise. Generating income that may fall under any of the six sub-heads as noted above, does not affect its taxability in any manner whatsoever irrespective of application of such income for the payment of interest, adjustment and or setting off on account of expenditure etc. 7. It may be observed that a corporate entity like Appellant, have vast portfolio to operate upon under its Article and Memorandum of Association. A corporate entity or for that matter any person/assessee may have more than one source of income, each falling in any of the six sub- heads enumerated under section 15 ibid. Income falling under any of the six sub-heads is charged separately under different provisions of the Ordinance, 1979 as mentioned against each sub-head of income as noted above. 8. It may so happen, as in the instant case, that a company incorporated to undertake any commercial or business venture has not yet commenced its main business or commercial activity that may yield any income, may generate income from other sources, like renting out part of its premises, which is not yet put to use during period of completion of its factory/cement plant and or by purchasing and selling any real estate using its surplus fund and or by renting it out, and or by utilizing its surplus fund in any other commercial proposition including and not limited to placing such funds in fixed deposit or profit bearing scheme in any financial institution and or by investing in stock or securities etc. as may be permissible under its Article and Memorandum of Association. As has happened in the case in hand, to generate more revenue or earn interest or profit, Appellant Company, in its commercial prudence and rightly so, Civil Appeals No.150, 151 & 152 of 2006 -: 27 :- instead of keeping its surplus money idle, “chose to employ such fund in proactive manner in order to generate additional fund”, invested its surplus funds “by way of portfolio, fund and cash management venture”. It is Appellant’s case that “by an active trading (buying and selling) of these financial assets, the Appellant was able to earn substantial amount by way of return”. 9. As noted in the narrative above, DCIT disallowed the claim of the Appellant Company to set off the aggregate of the sum so realized from the financial institutions against unutilized capital expenditure, which also included the financial charges and capitalized the balance claiming to have reduced the project cost, which triggered controversy in hand. The decision of the DCIT was reversed by the CIT(A), however ITAT, restored the finding of the DCIT. 10. The controversy that has drawn attention of this Court in instant case is ‘whether the “interest income” generated “by way of portfolio, fund and cash management venture” falls under clause (d) and or (f) of Section 15 of the Ordinance, 1979’. As noted above, income within taxable slab may fall under any of the six sub-heads enumerated under Section 15 ibid; are liable to be taxed in accordance with respective charging provisions, unless specifically exempted by law under Section 14 read with schedule 1 of the Ordinance. 11. For the purpose of controversy in hand, phrases “Income from business” (clause-d) and “Income from other sources” (clause-f) are relevant. “Business” is defined under Section 2(11) of the Ordinance, 1979 “to include any trade, commerce or manufacture, or any adventure or concern in the nature of trade, commerce or manufacture. As noted above each head of income enumerated in Section 15 ibid is charged separately under respective charging section. Charging provision for the purposes of income from business falling under clause (d) of Section 15 ibid; is Section 22 of the Ordinance, 1979, which provides “income” that shall be chargeable under the head of income from “business or profession” as follows:- (a) Profits and gain of any business or profession carried on, or deemed to be carried on, by the assessee at any time during income year Civil Appeals No.150, 151 & 152 of 2006 -: 28 :- (b) Income derived by any trade, profession and similar association from specific service performed for its members; and (c) Value of any benefit or perquisite, whether convertible into money or not, arising from business or exercise of profession. Explanation : Where speculative transaction carried on by an assessee are of such a nature as to constitute a business, the business, the business (hereinafter referred to as “speculation business”) shall be deemed to be distinct and separate from any other business carried on by the assessee.” 12. Income from “other sources” chargeable to tax per clause (f) of Section 15 is further elaborated in Section 30 of the Ordinance, 1979, which reads as follows:- “30. Income from other sources: (1) Income of every kind which may be included in the total income of an assessee under this Ordinance shall be chargeable under the head “Income from other sources”, if it is not included in his total income under any other head. (2) In particular, and without prejudice to the generality of the provisions of sub-section (1), the following income shall, save as otherwise provided in this Ordinance, be chargeable under the head “Income from other sources” namely, (a) dividend; (b) interest, royalties and fees for technical services; (c) ground rent; (d) income from the hire of machinery, plant or furniture, belonging to the assessee and also of buildings belonging to him if the letting of the building is inseparable from the letting of the said machinery, plant or furniture; and (e) any income to which sub-section (12) of the Section 12 or Section 13 applies.” 13. Contentions of Mr. Khalid Anwar, learned senior ASC for the Appellant, that though primary object of the Appellant Company per object No.1 set out in the Memorandum of Association of Appellant Company was to install “state of the art plant” for the purpose of manufacturing “PORTLAND CEMENT”. It was urged that surplus money lying idle, during the three assessment year, when the cement plant was under construction, as business prudence would have demanded, were invested to earn interest to mitigate cost of installation of plant, cannot be termed anything but income from business. It was urged that investment of the surplus fund of Civil Appeals No.150, 151 & 152 of 2006 -: 29 :- the Appellant company from part of the business activity is permissible under clause 6 of its Article and Memorandum of Association. 14. The controversy raised is not new, in our jurisdiction. Similar controversy prevailed in Indian jurisdiction, was resolved by the Supreme Court of India in the case titled as Tuticorin Alkali Chemicals and Fertilizers Ltd. v. Commissioner of Income Tax, 1997 Supp. (1) SCR 528 (also reported in 1998 PTD 900). In the cited case also the company raised funds for setting up plant for manufacturing heavy chemicals, utilized its funds, which were not immediately required by the company in short term deposit with the bank, such investment was specifically permitted under its Article and Memorandum of Association. In said case, also the company initially set off the interest income against the business loss, claimed benefit of carry forward of net loss, however, later filed revised return and claimed that interest and other finance charges along with other pre- production expenses will have to be capitalized, and that the interest income should go to reduce the pre-production expenses, which would ultimately be capitalized. The Supreme Court of India, considered large number of conflicting decisions of various High Courts and approved the judgment rendered by the Madras High Court in the case reported as Commissioner of Income Tax v. Seshasayee Paper & Board Ltd. (156 ITR 543), wherein it was held that “the interest earned by the assessee from the bank deposit had to be assessed under the head “Other sources”. 15. Position in Pakistan is no different. Similar controversy has arisen in the case of Commissioner of Income Tax v. Liquidator Khulna- Bagerhat Railway Company Ltd (PLD 1962 SC 128) wherein this Court confronted with proposition similar to one in hand and resolved the same at page 132 as follows:- “We have considered the various Articles by which this Company was governed. We have no hesitation in agreeing with the view of the High Court that the normal business of the Company was the construction and the running of the Railway and not investment of its moneys on interest. Other powers were also given to the Company by the Articles of Association, but it is not contended that all those powers pertained to the earning of normal business-income. If the Company, instead of retaining its surplus moneys in idle condition, invested them under the powers given to them by their Articles of Association, it would not follow that the income so derived would be part of the Company’s normal business-income. Each case Civil Appeals No.150, 151 & 152 of 2006 -: 30 :- must be decided on its own facts and, in the instant case, the circumstances brought out in the evidence do not indicate that the receiving of interest on invested moneys was really included in the business-income of the Company. We are, therefore, of the opinion that the view taken by the High Court is not open to any legal exception. The appeal fails and is hereby dismissed with costs.” 16. In another judgment reported as Genertech Pakistan Ltd v. Income Tax Appellate Tribunal of Pakistan (2004 SCMR 1319), wherein facts are somewhat similar to the facts in instant case, the assessee company, received share capital from various sharers for the purpose of setting up “Electric Generation Project”, and instead of keeping the money idle, deposited said amount in the Bank. The amount so deposited earned interest. The company showed “nil” profit from power generation, however, at the same time claimed exemption from payment of tax on the interest earned from the Bank under item 176 of the 2nd Schedule of the Ordinance, (which inter-alia exempted from tax any “Profit and gain derived by an assessee from an electric power generation project set up in Pakistan on or after 1st day of July 1988). Stance of the company was not accepted by the DCIT and the interest earned was treated as "income from other sources”, and was taxed accordingly, which assessment order was concurrently maintained up to the High Court. Controversy landed in this Court, which examined all the relevant provisions and came to a conclusion as recorded in paragraphs 9 and 11 thereof at page 1323 as follows:- “9. Now question for consideration is as to whether interest earned by the appellants from the share capital deposited in the Banks does fall within the scope of “income from other sources” under section 30 of the Ordinance. To answer the proposition it is to be borne in mind that Item 176 of Second Schedule of the Ordinance provides in clear terms that “profits and gains derived by an assessee from Electric Power Generation Project, set up in Pakistan on or after 1st of July, 1998 shall be exempted from total income tax.” Essentially, profits and gains from the Electric Power Generation Project is distinct and different from the interest being obtained by the Company on the deposit of share capital in the Banks, during the financial years for which the return of income under the relevant provision of Ordinance is filed and the exemption is claimed from the payment of income tax under Item 176 of Second Schedule of the Ordinance. It is informed that Electric Generating Plants of appellants-companies had started functioning in 1994-95 but they instead of claiming exemption on the profits/gains from Power Generation, claimed it from the deposit of the share capital lying in the Banks. It is to be seen that no sooner as a Company goes in production it cannot claim exemption of income tax on the interest of share capital deposited in Banks because on commencement of the production, Civil Appeals No.150, 151 & 152 of 2006 -: 31 :- profits and gains are to be earned out of the income of Electric Generation independently. 11. But in instant case, position is altogether different because the share capital deposits in the Banks by the appellants are providing a separate income to them after post production stage of the Power Generating activity, therefore, on the income of interest no exemption can be claimed by the appellants under Item 176 Second Schedule of the Ordinance as it is a different income from the profits/gains being earned from post production activity of power generation.” 17. In another case reported as CIT, Karachi v. Gelcaps (Pvt) Ltd (2009 PTD 331), a learned Division Bench confronted with similar proposition, examined large number of cases from Pakistani and Foreign jurisdiction in detail and came to following conclusion in Paragraph 38 at page 350; as follows:- “38. We fully agree with the reasoning contained in the above two judgments of the Patna High Court and hold that the interest income earned by the assessee in the two cases before us on short-term deposit out of the capital borrowed for the establishment of industry is not income from business but is income from other sources and cannot be allowed to be adjusted against the interest paid on the borrowed capital for the simple reason that the interest paid on the borrowed capital is to be capitalized and there is no provision in law whereby income earned under the head “other sources” can be permitted to be adjusted against the expenses which are to be capitalized.” 18. In a more recent judgment reported as UCH Power (Pvt) Ltd v. Income Tax Appellate Tribunal (2010 SCMR 1236), this Court once again reaffirmed the principle enunciated in the case of Tuticorin Alkali Chemicals (1998 PTD 900); Gelcaps (Pvt.) Ltd (2009 PTD 331) and Genertech Pakistan Ltd (2004 SCMR 1319), already noted in the preceding paragraphs above. 19. On examining the scheme of the Income Tax Ordinance, 1979, case law on the subject, consensus that emerges is that during the period or course of setting up of a factory or plant by the company, activity of investing surplus funds of the company and generating any sum, return or interest on such investment, could not be considered as “Income from business” under clause (d) of Section 15 of the Ordinance, 1979. Fact remains in the words of the Appellant, surplus funds in the hands of appellant company were employed “in proactive manner in order to generate additional fund”, invested its surplus funds “by way of portfolio, fund and cash management venture”. It is Appellant’s case that “by an Civil Appeals No.150, 151 & 152 of 2006 -: 32 :- active trading (buying and selling) of these financial assets, the Appellant was able to earn substantial amount by way of return”. Such activity was carried out during the period cement plant/factory was under construction, therefore, the Appellant, under facts and circumstances cannot be said to be carrying on any business within the contemplation of Section 22 of the Ordinance, 1979. When income does not fit in any of the five sub-heads enumerated in clauses (a) to (e) of Section 15 of the Ordinance, 1979 and falls under the residuary sub-head of “Income from other sources” i.e. clause (f) of Section 15 ibid, the DICT, under the given facts and circumstances, was justified to treat the “interest” income yielding from the investment of the surplus funds of the company as “Income from other sources” and rightly assessed the same under Section 30 (2)(b) of the Ordinance, 1979, which was rightly sustained by the ITAT and so also by the learned Division Bench of the High Court. 20. Consequently, the appeals do not merit consideration and are dismissed. Judge Civil Appeals No.150, 151 & 152 of 2006 -: 33 :- ORDER OF THE BENCH By majority of two to one, these appeals are, accordingly, dismissed. Judge Judge Judge Announced in open Court on 10th July 2015 at Islamabad (Judge)

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Mian Saqib Nisar, CJP Mr. Justice Umar Ata Bandial Mr. Justice Faisal Arab CIVIL APPEALS NO.1515 & 1516 OF 2016 (On appeal from the judgment/order dated 02.06.2015 passed by Peshawar High Court, Peshawar in W.Ps. Nos.4122/2010 & 214/2011) Govt. of Khyber Pakhtunkhwa, Thr. Secretary Energy & Power Department, Peshawar, etc. … … Appellants. (in both cases) Versus Ihsan Ullah … … Respondent (in C.A.1515/2016) Masood Khan & others … … Respondent (in C.A.1516/2016) For Appellant No.1 : Mr. Umar Farooq Adam, Addl.AG KPK (in both cases) For Appellants (2-3) : Mr. Shumail Butt, ASC. (in C.A.1515/2016 & for Appellants 2-6 in C.A.1516/2016) For respondents : Mr. Zulfiqar Khalid Maluqa, ASC. (in both cases) Date of hearing : 08.02.2017. JUDGMENT: UMAR ATA BANDIAL, J. – The Appellants challenge the common judgment of the learned Peshawar High Court dated 02.06.2015, holding that the contract services of the Respondents stand regularised by operation of law, under Section 19(2) of the C.As.1515-1516/2016 2 KPK Civil Servants Act 1973 (“Act, 1973”), as amended by the KPK Civil Servants (Amendment) Act, 2005 (“Amendment Act, 2005”). 2. The Respondents were appointed in 2004 as Accountants BPS-16 for one year on contract basis to project posts in various projects of the Sarhad Hydel Development Organisation (“SHYDO”) now known as the Pakhtunkhwa Energy Development Organisation (“PEDO”), which organisation is represented by Appellants No. 2 to 5. The Respondents’ contracts were repeatedly extended until December 2010, when they were informed that their employment was being terminated due to the completion of their respective projects. The Respondents challenged their termination vide Writ Petitions before the learned Peshawar High Court. By the impugned judgment dated 02.06.2015, the learned High Court allowed the Petitions and held that the Respondents stood regularized by operation of law, as already noted above. 3. We have heard the learned counsel for the parties and have gone through the impugned judgment carefully and perused the record. 4. In 2005, Section 19(2) was inserted into the Act, 1973 by the Amendment Act, 2005 which reads as under: “19. Pension and Gratuity (1) … (2) A person though selected for appointment in the prescribed manner to a service or post on or after the 1st day of July, 2001, till the commencement of the said Act, but appointed on contract basis, shall, with effect from the commencement of the said Act, be deemed to have been C.As.1515-1516/2016 3 appointed on regular basis. All such persons and the persons appointed on regular basis to a service or post in the prescribed manner after commencement the said Act shall, for all intents and purposes, be civil servant, except for the purposes of pension or gratuity. Such a civil servant shall, in lieu of pension and gratuity, be entitled to receive such amount contributed by him towards the Contributory Provident Fund, along with the contributions made by Government to his account in the said Fund in the prescribed manner.” (emphasis supplied) 5. The fiction of regularisation of service created by Section 19(2) supra was applied by the learned High Court because the date of contract employment of the Respondents falls within the qualifying period prescribed in the said provision. However, we are unable to subscribe to the view taken by the learned High Court for a number of reasons. 6. Firstly, it is pertinent to note that according to Section 2(1)(b) of the Act, 1973: “2.(1) … (a) … (b) “civil servant” means a person who is member of a civil service of the Province, or who holds a civil post in connection with the affairs of the Province, but does not include- (i) a person who is on deputation to the Province from the Federation or any other Province or other authority; (ii) a person who is employed on contract, or on work- charged basis or who is paid from contingences; or (iii) a person who is “worker” or “workman” as defined in the Factories Act, 1934 (Act XXV of 1934), or the Workman’s Compensation Act, 1923 (Act VIII of 1923).” (emphasis supplied) In other words, according to the Act, 1973 civil servants are employees who are in the service of the provincial government or C.As.1515-1516/2016 4 who hold a civil post in such government. According to the Sarhad Hydel Development Organisation Act, 1993 (now in its amended form known as the Pakhtunkhwa Energy Development Organisation Act, 1993) SHYDO/PEDO is not a government department; it is rather a semi-autonomous body. The expressions “service or post” used in Section 19(2) ibid manifest the attributes given in the aforesaid definition of a civil servant in Section 2(1)(b) of the Act, 1973. It becomes clear that Section 19(2) applies to employees of the government and not to employees of semi- autonomous bodies. Therefore, in the absence of material showing that the Respondents are members of a Provincial service or are holding regular sanctioned posts in the Provincial Government, they are not eligible for the benefit granted by Section 19(2) ibid. 7. Secondly, it is an undisputed fact that the Respondents were project employees. Their letters of appointment clearly state that their posts were “temporary project posts” which would be “likely to continue till the completion of the project.” The rationale for the 2005 amendment incorporating Section 19(2) in the Act, 1973 refutes the view that the new sub-Section applies to project employees. Under its 2002 Contract Policy, the KPK government made contract based appointments on sanctioned posts falling under the provincial government budget. Such employment created disparity between the rights and privileges of regular and contract employees of the government. Section 19(2) ibid was introduced to mitigate that imbalance. A factual narrative of the remedial object of C.As.1515-1516/2016 5 the said provision is available in the judgment of the learned Peshawar High Court in Tariq Habib vs. Govt of NWFP [2011 PLC (CS) 1479]. 8. The impugned judgment by the learned High Court places reliance on Government of KPK and others vs. Kaleem Shah and others (2011 SCMR 1004) as authority for regularisation of project employees. The view expressed in the said judgment follows the judgment of this Court dated 01.03.2011 passed in Civil Appeals Nos. 834 to 837 of 2010 titled Govt. of NWFP and others vs. Abdullah Khan and others. In that case, the employer government department had failed to prove that the contesting respondents were project employees. Consequently the latter were granted regularisation in service. The facts of the present case are different. The Respondents are admittedly project employees in a semi- autonomous statutory body of the provincial government and the only question is whether such employment qualifies for regularization under Section 19(2) of the Act, 1973. We have already observed that the eligibility criterion for relief under Section 19(2) of the Act, 1973, namely, being member of a provincial service or holder of a civil post in the provincial government, is not met by the Respondents. The KPK (Regularisation of Services) Act, 2009 also excludes project employees from its ambit, therefore, the Respondents are ineligible even on that score. Consequently, we are not persuaded by the relevance of the Kaleem Shah’s case supra relied by the learned High Court to the matter in issue. C.As.1515-1516/2016 6 9. The Respondents have also alleged that they have been discriminated against by their employer SHYDO/PEDO. We do not, however, find reliable material to accept this contention. The Respondents have cited the cases of numerous SHYDO employees who have been regularised but these employees were not shown to be project employees. The difference of status between the said regularised employees and the Respondents is clear from their respective letters of appointment. Unlike the Respondents, the letters of appointment of the regularised employees do not offer employment on temporary project posts. The Respondents are therefore, prima facie, not similarly placed as the regularised employees. The learned counsel for the Respondents cited the regularisation of one Mr. Anwar Zeb, a project employee. The Appellant employer has, however, stated that Mr. Anwar Zeb was ‘inadvertently’ regularised but his status has been reversed. In view of the foregoing, the Respondents’ plea of discrimination is, prima facie, misconceived. 10. Be that as it may and in the interest of justice, the Respondents may within one month hereof place documentary evidence of the regularisation of service of any project employee of SHYDO/PEDO before the Appellant authority in order to show that notwithstanding the employment of such employee on a temporary project post his services were nevertheless regularised by the Appellant. In such event, the Appellant authority shall after C.As.1515-1516/2016 7 Verification forthwith regularise the services of the Respondents in SHYDO/ PEDO with effect from the date of termination of their services. For the foregoing discussion, the impugned judgment dated 02.06.2015 is set aside and these appeals are partly allowed in the above terms. Chief Justice Judge Judge Announced in Court on 05.05.2017. Sd/- Judge NOT APPROVED FOR REPORTING.

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: MR. JUSTICE MUSHIR ALAM MR. JUSTICE MANZOOR AHMAD MALIK Civil Appeal No.1519 of 2013 Against order dated 20.6.2013 of Lahore High Court, Lahore, passed in Writ Petition No.11584 of 2013. Haroon-ur-Rashid Appellant(s) VERSUS Lahore Development Authority, etc. Respondent(s) For the Appellant(s) : Mr. Mehboob Azhar Sheikh, ASC For the Respondent(s) : Mr. Khurram Raza Ch, ASC Rana Umar Saeed Dy. Dir (SFP) Date of Hearing : 26.02.2016 JUDGMENT Mushir Alam, J-. This appeal by leave of the Court is directed against order dated 20.6.2013 of Lahore High Court, Lahore, whereby Writ Petition No.11584 of 2013 filed by the appellant challenging the order of his compulsory retirement was dismissed. 2. Facts, in brief, are that the appellant holding the charge of Deputy Director (Revenue), a Grade-18 post in Lahore Development Authority (LDA) was suspended from service and issued a show cause notice dated 02.7.2012 under Section 7(b) read with Section 5(1) (a) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (PEEDA, 2006) for having committed irregularities detailed therein. Show cause notice was contested and after hearing, major penalty of compulsory retirement from service was inflected on the appellant by the Director General/Competent Authority of the LDA vide order dated Civil Appeal No.1519 of 2013 2 3.8.2012. Departmental appeal was dismissed by the Chairman, LDA on 23.4.2013, which was challenged through Writ Petition No.11584 of 2013. The learned High Court dismissed the petition inter alia holding that:- “Learned counsel for the petitioner has admitted before this Court that there are no statutory rules of service and on the basis of malafide on the part of respondents he has filed this constitutional petition. I am afraid when there are no statutory rules of service and rule of master and servant is applicable, therefore, in the light of case law referred by learned counsel for the respondents i.e. Lahore Development Authority and others Versus Abdul Shafiq and others” (1992 PLC 1214) as well as an unreported judgment of this Court passed in Writ Petition No.11926 of 2011 titled “Masood Ahmad Qazi Vs. L.D.A etc” decided on 18.1.2012, this writ petition is not maintainable. Even if it is presumed that there was some malice or malafide on the part of respondents, simply saying so is nothing until and unless it is proved through cogent evidence. The petitioner, if so advised, can file a suit for damages, if he has wrongly been dismissed from the service. In this view of the matter, this petition being not maintainable stands dismissed.” 3. Mr. Mehboob Azhar Sheikh, learned ASC appearing for the appellant contends that the appellant was not proceeded under the Lahore Development Authority Service Regulations, 1978 (LDA Regulations, 1978) which admittedly are non statutory. He was proceeded under the PEEDA, which is a statutory enactment and any violation thereof or action taken there under is amenable to writ jurisdiction and in support of his contention he has placed reliance on the case of Muhammad Amin vs. Government of Punjab (2015 SCMR 706) wherein it has been held that employees of statutory authority who fall within the ambit of employee covered under section 2(h) (i) of the PEEDA, 2006 and are not civil servants, for redressal of their grievances arising out of disciplinary proceedings under PEEDA, 2006 may invoke jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. 4. Mr. Khurram Raza Chaudhry, learned ASC for the respondents-LDA has defended the impugned order. He Civil Appeal No.1519 of 2013 3 contends that though the LDA is created under the Lahore Development Authority Act, 1975 (LDA Act, 1975) but services of employees of the LDA are governed under the LDA Regulations, 1978 framed under Section 45 of LDA Act, 1975 which are non-statutory as held in the cases reported as Muhammad Saeed Ahmed Khan and 2 others vs. Secretary to Government of the Punjab, Housing and Physical Planning Department and 3 others (PLD 1983 Lahore 206) and Javaid Iqbal vs. Azad Government of the State of Jammu and Kashmir and 2 others (1992 PLC 1214). According to learned counsel, this Court, in a number of cases, including the ones reported as Zeba Mumtaz v. First Women Bank Ltd (PLD 1999 Supreme Court 1106); PIA Corporation v. Suleman Alam Rizvi (2015 SCMR 1545); Abdul Wahab v. HBL (2013 SCMR 1383); Pakistan Defence Officers’ Housing Authority v. Jawaid Ahmed (2013 SCMR 1707); Nazir Gillani v. Pakistan Red Crescent Society (2014 SCMR 982); and Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others (PLD 2010 Supreme Court 676), has consistently held that relationship between a statutory corporation or authority and its employees is that of a ‘master and servant’ and no writ would be maintainable against the disciplinary proceedings taken under non-statutory rules of service. He also contends that since after the case reported as Muhammad Mubeen-us- Salam v. Federation of Pakistan (PLD 2006 Supreme Court 172), employees of the LDA, not being Civil servant, cannot invoke jurisdiction of Service Tribunal either, only remedy if any lies by way of suit before the civil court. According to learned counsel, no interference in the rightful exercise of jurisdiction by the High Court in declining to interfere in the departmental matter is called for. 5. Heard the arguments and perused the record. There is no cavil to the factual matrix of the case that the LDA created under the LDA Act, 1975 is a statutory authority and disciplinary matters and proceedings against its employees, Civil Appeal No.1519 of 2013 4 admittedly were governed under the LDA Regulations, 1978 framed under Section 45 of the LDA Act, 1975. However, pursuant to the promulgation of Punjab Removal from Service (Special Powers) Ordinance, 2000 (RSO, 2000), enacted on 18.09.2000, the employees both in the service of Government of Punjab and or in service of statutory corporation/authority/body for the purpose of disciplinary matters and proceedings were brought within the regime of RSO, 2000 which was succeeded by Punjab Employees Efficiency, Discipline Act, 2006 (PEEDA, 2006), promulgated on 17th October, 2006. Section 2(h) of PEEDA, 2006 recognizes two sets of employees; one in the government service or those who are members of a civil service of the Province or who hold civil post in connection with affairs of the Province and another set of persons in the employment of corporation, corporate body, autonomous body, authority, statutory body or any other organization or institution set up, established, owned, managed or controlled by the Government by or under any law for the time being in force or a body or organization in which the Government of Punjab has a controlling share or interest and also includes the Chairman and the Chief Executive and the holder of any other office therein. Thus it could be seen that irrespective whether a person is in the Government service or a member of a civil service (per section 2(h)(ii) of PEEDA) or is in employment of corporation or corporate or statutory body (per section 2(h)(i) of PEEDA) could be proceeded departmentally in disciplinary matter under the uniform statutory disciplinary dispensation. Any proceedings taken, penalty imposed in terms of PEEDA, 2006 could be agitated before the departmental hierarchy by way of appeal, review and or revision before the competent authority detailed therein. 6. We have come across case of Muhammad Masood v. Market Committee (2014 PLC (CS) 1080), where an employee of Market Committee, invoked the writ jurisdiction Civil Appeal No.1519 of 2013 5 of the High Court against the action taken under the PEEDA, 2006. Constitution Petition and so also the review Petition were dismissed holding that the Petitioner was a Civil Servant; his remedy lies under Section 19 of the PEEDA, 2006 before the Punjab Service Tribunal. 7. It may be observed that pursuant to dicta laid down in the case of Muhammad Mubeen-us-Salam (PLD 2006 SC 602) an employee of an authority or statutory corporation cannot be conferred a status of a civil servant or in service of the Province or a post in connection with the affairs of the Province under Article 240, thus not amenable to the jurisdiction of Services Tribunal constituted under Article 212(1)(a) of the Constitution of Islamic Republic of Pakistan, 1973. In this view of the matter, in the case of Muhammad Dawood v. Federation of Pakistan (2007 PLS (CS) 1046), a larger (three members) Bench of Sindh High Court, declared Section 10 of the of the RSO, 2000 conferring appellate jurisdiction on the Service Tribunal, in respect of matter arising out of disciplinary proceedings under RSO, 2000 as ultra vires of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. Remedy of appeal against the final order passes under Section 16 or Section 17 of PEEDA, 2006 has been extended to “any employee” aggrieved” or “affected employee” before the Punjab Service Tribunal; extending the analogy of Muhammad Dawood case (2007 PLC (CS) 1046), provisions of Section 19 of PEEDA, 2006 (which is contemporaneous to Section 10 of RSO, 2000) would be ultra vires. It is settled position in law that while interpreting the law or any provision of any statute all efforts are made by the Court to save the statute by applying various tools of interpretation one of the rule of harmonious construction being rule of reading down and rule of severance. Rule of reading down, a statutory provision means that a statutory provision is generally read and or toned or narrowed down, applying restrictive meaning in its application. Rule of severance means to trim down or Civil Appeal No.1519 of 2013 6 slice away invalid portion which is otherwise generally considered to be part of statute or provision, purpose is to save as much as to bring the statute or provision within the ambit of constitution and law as declared by the superior Courts and to protect it from being declared ultra-vires or unconstitutional as a whole. If such trimming or slicing away is possible then the Court declare such part to be beyond the legislative competence and leave the reminder valid and operative. In the case of Delhi Transport Corporation v. D.T.C Mazdoor Congress (AIR 1991 SC 101=1990 SCR Supl. (1) 142), Indian Supreme Court cited with approval the meaning and scope of the word 'reading down' and 'Severance' dealt with on page 7, para B in Australian Federal Constitutional Law by Colin Haward, which reads as follows: “The High court presumes the validity of legislation to the extent that it will not of its own motion raise questions of constitutionality. Legislation is treated as valid unless the parties to litigation challenge it on constitutional grounds. The techniques of construction known as reading down and severance are corollaries of this presumption. Reading down puts into operation the principle that so far as it is reasonably possible to do so, legislation should be construed as being within power. It has the practical effect that where an Act is expressed in language of a generality which makes it capable, if read literally, of applying to matters beyond the relevant legislative power, the court will construe it in a more limited sense as keep it within power” And Further: “It does not necessarily follow that because a statute cannot be read down, it is wholly invalid. The presumption of validity leads naturally to the view that where a statute cannot be held wholly valid it should be held valid at least to the extent that it is reasonably possible or practicable to do so. Where reading down is not available the court next decides where there is a case for severing the invalid parts of the statute from the parts which, standing alone, are valid. If this can be done the court declares only the invalid parts of the statute from the parts which, standing alone, are valid to be beyond power and leaves the remainder operative” 8. In the case of Province of Sindh through Chief Secretary v. M.Q.M. through Deputy Convener (PLD Civil Appeal No.1519 of 2013 7 2014 SC 531), it was held by this Court that at the time of “reading down” of a statute two principles had to be kept in view; first that the object of “reading down” was primarily to save the statute and in doing so the paramount question would be whether in the event of reading down; could the statute remain functional; second would the legislature have enacted the law if that issue had been brought to its notice which was being agitated before the Court. In this view of the matter, Courts have a duty to construe and apply laws to specific fact situations. Sometimes they have to construe a particular law as meaning nothing and sometimes they have to construe the law as meaning something different from the letter of the law passed by the Parliament. The offending provision or part of it is read down to the extent it is necessary to give it legal effect, or will be severed if it cannot be read down, and the remaining part and provisions of the statute will remain in tact. Section 19 of the PEEDA, 2006 as it reads, encompasses remedy before the Punjab Service Tribunal to both the employees of statutory corporation/ body/authority covered under Section 2(h)(i) and so also to the civil servants falling under section 2(h)(ii) ibid. As discussed above, it is only the civil servants by virtue of Article 240 read with Section 260 of the Constitution, who are amenable to the jurisdiction of Services Tribunal constituted under Article 212(1)(a) of the Constitution of Pakistan, 1973. This is what was held by this Court in Mubeen us Salam Case (PLD 2006 SC 602) supra while interpreting deeming provision of section “2-A” of the Service Tribunal Act, 1973, whereby employees of governmental controlled corporation etc. were treated as civil servants and given access to the Service Tribunal for the redressal of their grievance arising out of disciplinary proceedings. Section 2-A ibid was declared ultra-vires and it was further held that the Service Tribunal is established in pursuance of Article 212 of the Constitution and has been conferred exclusive jurisdiction only in respect of disputes relating to terms and conditions of civil Civil Appeal No.1519 of 2013 8 servant under the Civil Servants Act, 1973 and such jurisdiction could not be extended to any other category. In this view of the matter, harmonious construction dictated by rule of reading down and rule of severance provisions of Section 19 of PEEDA, 2006 was examined which reads as follows; “19. Appeal before Punjab Service Tribunal.- (1) Notwithstanding anything contained in any other law for the time being in force, any employee aggrieved by any final order passed under Section 16 or 17 may, within thirty days from the date of communication of the order, prefer an appeal to the Punjab Service Tribunal established under the Punjab Service Tribunals Act, 1974 (Punjab Act, IX of 1974). (2) If a decision on a departmental appeal or review petition, as the case may be, filed under section 16 is not received within a period of sixty days of filing thereof, the affected employee may file an appeal in the Punjab Service Tribunal within a period of thirty days of the expiry of the aforesaid period, whereafter, the authority with whom the departmental appeal or review is pending, shall not take any further action. (underlined to add emphasis)” 9. In view of the discussion made above, instead of interpreting and or giving literal meaning to the term “employee aggrieved” as used in subsection (1) and the “affected employee” as used in sub section (2) of Section 19 of PEEDA, such terms are to be harmoniously interpreted to save the provision from casualty of striking it down. Such terms are to be read down and given restrictive and toned down meaning and employing ‘rule of severance’ to be understood as those employees falling under the category of employee within the contemplation of section 2 (h)(ii) of PEEDA only; thus while construing phrases “employee aggrieved” and “affected employee” respectively used in Section 19 of PEEDA, 2006 as reproduced above, category of employees of statutory corporation etc. per section 2(h)(i) ibid, are to be severed and sliced away for the purposes of extending remedy before the Service Tribunal, it is only than provisions of Section 19 ibid could be saved from being struck down as ultra vires of the Constitution and law as declared by this Court and Civil Appeal No.1519 of 2013 9 noted above. Thus the remedy of appeal before the Punjab Service Tribunal against any order passed under Sections 16 & 17 of the PEEDA, 2006 could only be invoked and availed by the employees falling within the ambit of Section 2(h)(ii) of section 19 ibid; before the Punjab Service Tribunal and not by employees of statutory corporation etc. falling under section 2(h)(i) of PEEDA, 2006. 10. It may be observed that employees of a statutory corporation etc. were deprived of their right of appeal before the Service Tribunal (extended under Section 2-A of Service Tribunals Act, 1973 since declared ultra vires) pursuant to judgment rendered in the case of Muhammad Mubeen-us- Salam vs. Federation of Pakistan (PLD 2006 Supreme Court 602) and in case of Muhammad Idrees vs. Agricultural Development Bank of Pakistan and others (PLD 2007 Supreme Court 681) this Court found a way out for the employees of statutory Corporation/ Authorities/ bodies etc. who were proceeded under the Removal from Service (Special Powers) Ordinance, 2000 to invoke jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. 11. Plethora of the cases relied upon by learned counsel for the respondent all emanates in respect of the employees of statutory corporations and or authority governed under the non statutory rules who invoked the jurisdiction either of the Service Tribunal under section 10 of the repealed RSO, 2000 or under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 invariably in all the cases this Court also considered whether the relationship between the employer and employee is governed under any statutory rules or not, for the purposes of determining forum for the redressal of grievance. There appeared some anomaly in some of the cases noted above as the implication of statutory intervention in disciplinary matter under RSO, 2000 was neither raised nor examined by this court, which anomaly was attended to in the Civil Appeal No.1519 of 2013 10 subsequent case reported as of Pakistan International Airline Corporation and others vs. Tanweer-ur-Rehman and others (PLD 2010 Supreme Court 676) in para 19 at page 689 thereof it was held by this Court as under:- “However, this question needs no further discussion in view of the fact that we are not of the opinion that if a corporation is discharging its functions in connection with the affairs of the Federation, the aggrieved persons can approach the High Court by invoking its constitutional jurisdiction, as observed hereinabove. But as far as the cases of the employees, regarding their individual grievances, are concerned, they are to be decided on their own merits namely that if any adverse action has been taken by the employer in violation of the statutory rules, only then such action should be amenable to the writ jurisdiction. However, if such action has no backing of the statutory rules, then the principle of Master and Servant would be applicable and such employees have to seek remedy permissible before the Court of competent jurisdiction.” 12. In a recent pronouncement of this Court in the case of Pakistan Defence Housing Authority vs. Javed Ahmed (2013 SCMR 1707) anomaly prevailing as to availability of remedy to the employees of statutory corporation/authority/body was authoritatively resolved and clarified by a larger bench of five Members of this Court, wherein employees of Defence Officers Housing Authorities, PIA, Pakistan Steel Mills, N.E.D, University of Engineering and Technology, Pakistan State Oil and SME Bank were heard together and in all the cases cited by the learned counsel for the respondents-LDA, were also considered in paragraph 57 thereof at page 1746 and para 60 at page 1748, which read as under:- “57. The right of appeal is a substantive right. The respondents were deprived of the said right not by an legislative amendment but by a judicial opinion and that too on the analogy of the law laid down in Mubeen us Islam’s case (PLD 2006 SC 602) and Muhammad Idrees’s case (PLD 2007 SC 681). In both these cases, the effect of the Ordinance 2000 and that it was a statutory intervention was not a moot point. It is well established that an appeal is continuation of trial. Would it be a fair trial if an accused is shorn off his right of appeal? Would the deprivation of right of appeal not amount to judicial sanctification of all the orders passed by the Civil Appeal No.1519 of 2013 11 departmental authorities awarding various penalties to the employees and would it not be violative of the fundamental right to a “fair trial and due process” as ordained in Article 10A of the Constitution? Could the respondent-employees not invoke Article 199 of the Constitution to seek due compliance of the Ordinance 2000 for ensuring fair trial and due process? If the constitutional scheme and the purpose of law are kept in view, the answer to all these queries has to be in the affirmative and the constitutional petitions filed by the respondents seeking enforcement of their said right would be maintainable. 60. It was not disputed before this Court by appellants learned counsel that the respondent- employees were “persons in corporation service” within the meaning of section 2(c) of the Ordinance 2000 and except in the case of N.E.D. University, they were proceeded against under the said law. This was a ‘statutory intervention and the employees had to be dealt with under the said law. Their disciplinary matters were being regulated by something higher than statutory rules i.e. the law i.e. Ordinance, 2000. Their right of appeal (under section 10) had been held to be ultra vires of the Constitution by this Court as they did not fall within the ambit of the Civil Servants Act, 1973, [(in Mubeen us Salam’s case (PLD 2006 SC 602) and Muhammad Idrees’s case (PLD 2007 SC 681)]. They could in these circumstances invoke constitutional jurisdiction under Article 199 of the Constitution to seek enforcement of their right guaranteed under Article 4 of the Constitution which inter alia mandates that every citizen shall be dealt with in accordance with law. The judgment of this Court in Civil Aviation Authority (2009 SCMR 956) supra is more in consonance with the law laid down by this Court and the principles deduced there from as given in para 50 above.” 13. Thus, it could be seen that anomaly as to availability of forum for the aggrieved or affected employees of statutory corporation/authority/body against whom disciplinary proceedings are initiated and or any penalty is inflicted under statutory dispensation has been removed. In the case where the employees of statutory corporation/authority/body are proceeded under the statutory rules or any statutory dispensation like RSO, 2000 or PEEDA, 2006 etc action of the competent authority could be challenged under Article 199 of the Constitution of Pakistan of Islamic Republic of Pakistan, 1973. Civil Appeal No.1519 of 2013 12 14. Above rule was retreated with reference to action taken against an employee of a statutory authority falling within the category of employee falling under Section 2 (h)(i) of PEEDA, 2006 in the case of Muhammad Amin and another vs. Government of Punjab and others (2015 SCMR 706= PLC (CS) 1082)), wherein employee of Market Committee Sialkot, having no statutory rules, challenged action taken under PEEDA, 2006 in writ jurisdiction, was denied relief on the premise that he being Civil Servant, his remedy does not lie under Article 199 of the Constitution, this Court set aside the judgment and in paragraph 7 at page 709 it was observed as follow:- “Section 19 of the Act of 2006 which has been made applicable by virtue of Section 2(h)(i) of the Act of 2006 read with Section 35 of the Ordinance, regulates the services of the petitioners. Section 19 of the Act of 2006 which appear to have been amended subsequently clearly draws a line between the Civil Servants and the employees defined under section 2(h)(i) of the Act of 2006. The Civil Servants who are proceeded against under the provisions of the Act of 2006 have to approach the Punjab Services Tribunal against a final order passed by the Departmental Authorities. The other employees who are covered under Section 2(h)(i) of the Act of 2006, if aggri4eved by a final order passed by the Departmental Authorities under Section 16 or 17 of the Act of 2006 can seek redressal of their grievances before the High Court.” 15. In view of the foregoing discussion, the judgment rendered in the case of Muhammad Masood v. Market Committee (2014 PLC (CS) 1080), does not lay down the correct law and so also impugned judgment is not sustainable. It is abundantly clear that the respondent is an employee of Lahore Development Authority, a statutory authority created under Section 4 of Lahore Development Authority Act, 1975, proceeded under PEEDA, 2006, which is a statutory intervention in disciplinary matter, therefore, irrespective of the fact that the rules framed under Section 45 of the Lahore Development Authority Act, 1975 are non statutory yet the respondents were not proceeded under the Rules,1978 but under the PEEDA, 2006 which is a statutory enactment and Civil Appeal No.1519 of 2013 13 even a level up of the statutory rules. Therefore, High Court has jurisdiction to examine the proprietary of the impugned action taken against the respondents under the PEEDA, 2006. 16. Accordingly, the impugned order is set aside and the appeal is allowed. Writ Petition No.11584 of 2013 is remanded to the learned Lahore High Court for decision on merits as expeditiously as possible. Judge Judge Announced by me in open Court on ________ at Islamabad. Judge Approved for Reporting arshed/*

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE AMIN-UD-DIN KHAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CIVIL APPEAL NO. 152-L OF 2010 (Against the judgment of Lahore High Court, Lahore dated 24.06.2002 passed in RFA No. 180/1994) Lahore Development Authority and another … Appellant Versus Muhammad Tariq Niaz … Respondent For the appellant. : Ch. Waseem Arif Bhaddar, ASC Mr. M. Sabir Deputy Director For Respondents : Mr. Ahmad Waheed Khan, ASC Date of Hearing : 27.08.2020 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI;- Civil appeal, by leave of the Court under Article 185(3) of Constitution of Islamic Republic of Pakistan, 1973, is directed against the impugned judgment of Lahore High Court, Lahore dated 24.06.2002 passed in RFA No.180/1994. 2. The facts leading to file the instant civil appeal are that the respondent/plaintiff filed a suit for declaration/specific performance with consequential relief qua an agreement on the basis of which an offer was made by the appellant to respondent/plaintiff. The said offer was in response to an open public action proceedings published in a newspaper dated 06.10.1980 regarding a plot bearing No.193/B, Upper Mall Lahore. The respondent/plaintiff was one of the participants in the open auction proceedings while depositing Rs.5000/- in lieu of terms and conditions. Civil Appeal No.152-L of 2010. -: 2 :- The respondent/plaintiff was declared as highest bidder of the auction proceedings which was declared Rs.3,56,000/- per Kanal. As the respondent was highest bidder by all standards, therefore, the appellant formally invited the respondent to make 1/3 of the total auction price as per legal requirement at the spot. Consequently, Rs.1,50,000/- was deposited and he was further directed to deposited an amount of Rs.1,18,500/- in view of the acceptance of the bid. All such requirements were fulfilled accordingly and as such receipt of the same was duly issued. The respondent visited the office of the appellant time and again while seeking demand notice to make the rest of the amount payable against total auction amount. It is a matter of surprise that letter bearing No.707 dated 18.10.1980 was sent by the appellant/defendant wherein the respondent/plaintiff was intimated to contact the appellant/defendant. Subsequently, the respondent/plaintiff was informed on 11.12.1980 that a third party (not participated in auction proceedings) had offered them higher price of Rs.3,85,000/- per Kanal and as such showed their unwillingness to hand over the plot, the subject matter of auction proceedings to the respondent/plaintiff. Although the subsequent development was squarely unjustified, however, the respondent/plaintiff showed his inclination to pay the enhanced priced to meet the offer and as such intimated the appellant through a letter which was incorporated in diary of the appellant on 11.12.1980. The appellant in lieu of the offer made to the respondent/plaintiff directed him verbally to deposit the remaining amount within seven days, but in the meantime another public notice for open auction was published in "Daily Pakistan Times" dated 16.11.1980 wherein the same plot bearing No. 193/B Upper Mall Lahore was made the subject matter which was already auctioned in favour of the respondent/plaintiff. Civil Appeal No.152-L of 2010. -: 3 :- 3. Being aggrieved by the conduct of the appellant, the respondent/plaintiff filed a declaratory suit and specific performance with consequential relief while calling in question the re-auction of the plot already auctioned in favour of respondent/plaintiff. The learned trial court after recording of evidence of both the parties decreed the suit of the respondent/plaintiff vide judgment and decree dated 27.03.1994. The appellant challenged the judgment and decree of learned trial court through filing Regular First Appeal before Lahore High Court, Lahore which was ultimately dismissed vide judgment dated 24.06.2002. 4. At the very outset, learned counsel for the appellant contends that the learned courts below have grossly misinterpreted, misconstrued the evidence available on the record which was not evaluated in its true prospective. It is further contended that the oral as well as documentary evidence adduced by the appellant was altogether ignored and the same was not given due appreciation. Contends that the main aspect of the auction proceedings was not sustainable as no approval of the Director General was ever sanctioned in favour of the auction proceedings in the capacity as "competent authority" and as such whole super structure raised has no legal sanctity. Contends that the declaration as prayed was not sustainable as such no right or interest was ever accrued to the respondent/plaintiff in the given scenario. Contends that the communication through Ex.D-8 qua confirmation of the auction proceedings has no legal weightage as the negotiations were carried out with LDA staff having no authorization to enter into negotiations and as such hardly contribute towards completion of contract. Lastly, it is argued that mere assumption that the contract was complete cannot be substituted in absence of due sanction by the competent authority which is squarely missing in the given circumstances. Learned counsel prayed that Civil Appeal No.152-L of 2010. -: 4 :- as no right or interest has accrued in favour of the respondent/plaintiff, hence, no liability can be ascribed to the appellant, therefore, the reasoning assigned by the learned courts below are artificial, hence, nullity in the eye of law. 5. On the other hand, learned counsel appearing on behalf of respondent argued that the respondent was bona-fide participant/bidder of the auction proceedings qua the plot in question. Contends that all pre- requisite to enter into open auction were fulfilled as per terms and conditions and as such the depositing of different installment being highest bidder further supplement the bona-fide of the respondent/plaintiff. Contends that the conduct of the appellant while enhancing the auction price at belated stage was uncalled for although the respondent/plaintiff accepted the same with open heart. Contends that the public functionary cannot demonstrate beyond the limits prescribed by the law and as such an equitable right of the respondent was made complicated in un- precedented manner, hence, such conduct cannot be assented by the court of law. 6. We have heard the arguments of the learned counsel for the parties and perused the record with their able assistance. 7. There is no denial to this fact that the respondent/plaintiff participated in the open auction qua the plot bearing No. 193/B Upper Mall Lahore. During the bidding proceedings respondent/plaintiff was declared the highest bidder. The said claim of the respondent/plaintiff was even accepted by the appellant while submitting written statement before the learned trial court. It was further admitted that the respondent deposited Rs.1,50,000/- at the time of bid and later on he deposited Rs.1,18,500/- as 1/3rd of the bid. Admittedly the appellant/defendant never denied the Civil Appeal No.152-L of 2010. -: 5 :- various visits of respondent/plaintiff in the office of LDA in order to complete the bidding process while depositing the rest of the amount to discharge its liability qua payment of amount of auction. The introduction of third party by the appellant (not participated in the open auction proceedings) with offer of higher price was also intimated to the respondent/plaintiff which was ultimately accepted by the respondent/plaintiff and as such the letter was written which was incorporated in the daily register, therefore, despite of the acceptance of higher price another public notice was published in daily newspaper. Faquir Muhammad, Assistant Director LDA while appearing as DW.1 admitted in cross examination that the respondent was the highest bidder and LDA issued letter Ex.P.2 to respondent for negotiation. DW.1 also admitted that the respondent paid an amount of Rs.2,73,500/- at the spot as 1/3rd amount of the bid. The cross examination of DW.1 further reveals that one Saeed Ahmad filed an application to the LDA that the disputed plot be given to him at the rate of Rs.3,85,000/- per Kanal and the respondent was called through letter Ex.P3 to accept that amount in order to hand over the disputed plot. DW.1 further admitted that in the record of LDA, the application of respondent is available that he is ready to admit the condition under protest. The appellant did not deny that the offer was made subsequently to the respondent/plaintiff; therefore, the appellant could not back out from his admission. The written statement filed by the appellant as well as statement of DW.1 Faquir Muhammad and Ex.P.4 and Ex.P5 shows that the acceptance of the offer of the appellant to pay the price at the rate of Rs.3,85,000/- was made first orally on 03.11.1980 and thereafter through Ex.P4 dated 28.11.1980 and then through Ex.P.5 dated 15.12.1980 despite the fact that as per Ex.D.2 the bid of the respondent/plaintiff was cancelled on 28.11.1980. The learned counsel for Civil Appeal No.152-L of 2010. -: 6 :- the appellant was specifically confronted that the Director General ever proceeded to cancel the bid being unlawful as it was carried out without the sanction of competent authority. Further that the competent authority ever proceeded against those employees who negotiated with the respondent/plaintiff on behalf of the competent authority without seeking prior sanction. The learned counsel failed to satisfy this Court. Otherwise the fact that the price of bid was enhanced at belated stage on the pretext that one person who was not participant of the open auction had made an offer of higher price which cannot be made basis for re-auction of the plot and this practice seems to be un-precedented being without any lawful authority. On the contrary it is noticed by us that the respondent/plaintiff has performed his part towards fulfillment of contract by first depositing an amount of Rs.5000/- as per terms and conditions, as he was declared highest bidder. Therefore he deposited an amount of Rs.2,73,500/- at the spot as 1/3rd amount of the bid, all these facts are admitted by Assistant Director of LDA while deposing before the court, hence, in the given circumstances narrated above, it is made abundantly clear that the appellant/defendant was grossly unjustified to issue another proclamation for public auction relating to plot No. 193/B, Upper Mall Lahore, once its valid acceptance was made by the respondent/plaintiff. It is worth mentioning that the conduct of the appellant/defendant was not above- board, rather they acted in a manner which was squarely against the dictates of justice. This practice if allowed to continue it might frustrate public confidence qua public functionaries which might be detrimental to uphold the public order which is paramount to keep the society in peaceful atmosphere; therefore, the public functionaries are expected to perform their duties well within the prescribed limits of the law of the land. Civil Appeal No.152-L of 2010. -: 7 :- 8. For reasons recorded above, we do not find any merit in this appeal. It is accordingly dismissed. Judge Judge Judge Lahore 27.08.2020 Approved for reporting. *Athar*

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Qazi Muhammad Amin Ahmed Civil Appeal Nos1520, 1521 & 1522 of 2016 (Against judgment dated 20.10.2015 passed by Lahore High Court Lahore passed in C. R. No.2704 of 2004 and connected C.Rs.) Shabla & others (in C.A. No.1520 of 2016) Roshan Khan & others (in C.A. No.1521 of 2016) Muhammad Sher & others (in C.A. No.1522 of 2016) …Appellant(s) Versus Mst. Jahan Afroz Khilat & others (in C.A. No.1520 to 1522 of 2016) …Respondent(s) For the Appellant(s): Malik Ejaz Hussain Gorchha, ASC (in C.A. No.1520 & 1521 of 2016) Malik Ghulam Mustafa Kandwal, ASC (in C.A. No.1522 of 2016) Syed Rifaqat Hussain Shah, AOR For Respondent No.1: Maulvi Anwar-ul-Haq, ASC Ch. Ali Muhammad, ASC Mr. M. Ozair Chughtai, AOR Date of hearing: 13.11.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J. Ms. Jahan Afroz Khilat, respondent, inherited from her father’s estate, as a minor, land measuring 2722-Kanal 12 Marla; after her marriage, she settled in the United States, where she continued to receive her share of produce; she returned in the year 1989 to learn that her entire share stood mutated in favour of his nephew Meesam Mehdi Raza Khan, way back on 10.8.1968, through the good offices of his father Ameer Ali Raza Hayat Khan, her real brother. It is in evidence that the transferee was aged about 1 ½ year at the time of mutation. Through various transactions, the land passed on different hands, each arrayed as defendant in the suit, dismissed by the learned trial Judge vide judgment and decree dated 24.11.2011. The Appellate Court reversed the findings vide judgment and decree dated Civil Appeal Nos1520, 1521 & 1522 of 2016 2 14.09.2004, upheld by a learned Judge-in-Chamber of Lahore High Court vide consolidated judgment dated 20.10.2015, vires whereof are being assailed through the captioned appeals by leave of the Court; bound by a common thread, these are being decided through this single judgment. 2. Learned counsel for the appellants, in a unison, contend that the appellants are bonafide purchasers with consideration and, thus, the learned trial Court had rightly dismissed the suit and there was no occasion for the learned Appellate Court as well the learned Judge-in-Chamber to take a contra view; that the suit was not maintainable, as according to them, admittedly the plaintiff/respondent was not in possession of the suit land, otherwise doomed for being hopelessly barred by time. The bottom line is that the land was consciously alienated by the family, respondent’s being on board in each transaction. Reference to the entire estate by the High Court is lastly pressed into service to argue that the findings returned by the High Court, transcend far beyond the original decree and, thus, intervention by this Court would be most called for. Learned counsel for the respondents has defended the impugned judgment on the ground that the impugned transaction was nothing but a farce inasmuch as the respondent was minor at the time when impugned mutation was purportedly transacted; he has relied upon the doctrine of caveat emptor to argue that the appellants could not defend their title in the face of a transaction, void ab initio. Period of limitation could not stand in impediment to respondents’ claim, concluded the learned counsel. 3. Heard. Record perused. 4. Competing claims, notwithstanding, respondent’s title in her father’s estate to the extent of 2722-Kanal 12-Marla, as a minor daughter is a common ground; being a female, in a Muslim household, it was her due, conferred by Divine Law, recognized by the law of the land; it is so ordained in Sura Al-Nisa(4/10), reproduced below ۖ ْمُﻛِدَﻻْوَأ ﻲِﻓ ُﱠ� ُمُﻛﯾِﺻوُﯾ ۚ ِنْﯾَﯾَﺛْﻧُْﻷا ِّظَﺣ ُلْﺛِﻣ ِرَﻛﱠذﻠِﻟ ِنْﯾَﺗَﻧْﺛا َقْوَﻓ ًءﺎَﺳِﻧ ﱠنُﻛ ْنِﺈَﻓ ْنِإَو ۖ َكَرَﺗ ﺎَﻣ ﺎَﺛُﻠُﺛ ﱠنُﮭَﻠَﻓ ۚ ُفْﺻِّﻧﻟا ﺎَﮭَﻠَﻓ ًةَدِﺣاَو ْتَﻧﺎَﻛ  � � ےر� � (�ارو �) د�وا ىر� � �ا  � �ا� � ں�� ود � � �� � � �د ود (� ود) ں� � ں�� ف� �ا � ،�  �از �  ہو �ا روا ،� � �� ود � �� سا � � نا � � �دآ � � سا � � �ا Civil Appeal Nos1520, 1521 & 1522 of 2016 3 Given the preponderance of conferment, such a right, rooted into Personal Law, has to be jealously guarded, therefore, a heavy onus is cast upon the claimant to demonstrate that a female legatee had parted with her entitlement by choice and for considerations, consciously, without duress or uncalled for persuasions, by those placed qua her in advantageous positions. It is not merely an invasion into proprietary rights of a woman but a criminal offence punishable under section 498-A of the Pakistan Penal Code, 1860 (Act XLV of 1860) as well. In the present case, any one with ordinary prudence, would fail to find any rational, prompting a minor girl hardly of 13 years of age to alienate a considerable chunk of land in favour of her minor nephew aged less than two years; she was otherwise incompetent under the law to mutate the land; it sans solemnity as well. A momentary glance of the entry, exposes the deceit inherent in the mutation, reproduced for convenience of reference ‘ر � �ا � ن� � ن� ت� �ہ� ى� � �  �  �ا �ارا �� �ا ۔� ىد � � � م� � � ��ِ���ر جرد �او ا � ر� � � �’ It is recorded in flagrant violation of procedure, provided under section 42 of the West Pakistan Land Revenue Act, 1967 (XVII of 1967). There is none except Ameer Ali Raza Hayat Khan to command transfer of land in favour of his own son to his benefit and to the detriment of the respondent, no other than his real minor sister; flux of time can neither validate the transaction nor wash away the repugnance thereof. Argument that much water has flown under the bridge is entirely beside the mark. Limitation never run against fraud, more so in the matters involving inheritance rights of a female; a view consistently taken by this Court in cases reported as Fazal Ellahi deceased through legal heirs Vs. Mst. Zainab Bi (2019 SCMR 1930), Khan Muhammad through LRs & others Vs. Mst. Khatoon Bibi & others (2017 SCMR 1476), Mahmood Khan Vs. Syed Khalid Hussain Shah (2015 SCMR 869), Mst. Gohar Khanum Vs. Mst. Jamila Jan (2014 SCMR 801), Rehmat Ullah & others Vs. Saleh Khan & others (2007 SCMR 729), Arshad Khan Vs. Resham Jan and others (2005 SCMR 1859) and Ghulam Ali & 2 other Vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). Reference to period of limitation is otherwise misplaced; it is respondent’s case, in line with the pleadings and re-affirmed in the Civil Appeal Nos1520, 1521 & 1522 of 2016 4 witness-box, that she kept on receiving her share of produce while being in the United States wherefrom she returned in the year 1989 and learnt about the impugned mutation as late as in the year 1991 soon whereafter she instituted the suit. Similarly argument that the appellants being innocent buyers with considerations should not suffer from the consequences of a wrong done upon the respondent by her own kith and kin, though evokes sympathy, nonetheless, does not hold water in law. Doctrine of ‘caveat emptor’ is a well entrenched principle in our jurisprudence; it requires the buyer to be vigilant and careful as he cannot acquire a better title; as observed above, a glance over the mutation would have inescapably exposed the flaw patent therein, putting the potential buyers at caution. Non-maintainability of the suit on the plea of respondent’s being out of possession is an argument that too carries no weight; respondent being a co-sharer in the estate is deemed to be in possession in each inch thereof till the land is partitioned according the respective shares. Typographical error in description of land in terms of its volume in the High Court’s judgment does not carry vitiative impact inasmuch as the suit land is clearly described in the head note of the plaint as measuring 2722 Kanal 12-Marla and the suit was decreed in accordance therewith; effects of the error do not impinge beyond the suit land. View taken by the High Court being well within the remit of law calls for no interference. Appeals fail. Dismissed. Judge Judge Islamabad 13.11.2019 Approved for reporting. Azmat/-

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{'id': 'C.A.1520_2016.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, CJ MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE SH. AZMAT SAEED CIVIL APPEALS NO.1525 TO 1528 OF 2016 (On appeal from judgment dated 11.11.2015, passed by the Peshawar High Court, Peshawar, in W.Ps. No.2926-P, 3000-P, 2926-P and 3000-P/2012, respectively) CA.1525/2016 Dr. Farhat Abbas Vs. Dr. Mehmood- ul-Hassan and others CA.1526/2016 Dr. Farhat Abbas Vs. Dr. Hikmat Ullah Jan and others CA.1527/2016 Chief Executive, Lady Reading Hospital, Peshawar and another Vs. Dr. Mehmood-ul-Hassan and others CA.1528/2016 Chief Executive, Lady Reading Hospital, Peshawar and another Vs. Dr. Hikmat Ullah Jan and others For the Appellants : Mr. Abdul Latif Afridi, ASC Mr. Khalid Anwar Afridi, ASC (in CAs.1525 and 1526/2016) Mr. Shakeel Ahmed, ASC Mr. M. Amjad Khan, AOR (absent) (in CAs.1527 and 1528/2016) For Respondent No.1 : Mr. Ghulam Nabi Khan, ASC (in CAs.1525 and 1526/2016) Nemo (in CAs.1527 and 1528/2016) Date of Hearing : 24.10.2016 JUDGMENT SH. AZMAT SAEED, J.- Through this judgment, it is proposed to adjudicate upon Civil CA No.1525-2016 etc 2 Appeals Nos.1525 to 1528 of 2016, which are directed against a consolidated judgment dated 11.11.2015 of the learned Peshawar High Court, Peshawar. 2. The brief facts necessary for adjudication of the lis at hand are that vide Office Order dated 26.9.2012, Dr. Farhat Abbas (Appellant in Civil Appeals Nos.1525 and 1526 of 2016) was promoted as Associate Professor of Cardiology (BPS-19). The private Respondent namely, Dr. Mehmood-ul-Hassan challenged the same before the learned Peshawar High Court, Peshawar through Writ Petition No.2926- P of 2012, while the private Respondent namely Dr. Hikmat Ullah Jan also challenged the said Office Order through Writ Petition No.3000-P of 2012. In the aforesaid Constitutional Petitions besides calling into question the aforesaid Office Order dated 26.9.2012, the vires of the Regulations for the Appointment of Faculty Professorial Staff/ Examiners/Principals/Deans/Administrative Staff in Undergraduate & Postgraduate Medical & Dental Institutions of Pakistan, 2011, hereinafter referred to as “the Regulations of 2011”, were also challenged. Both the Constitutional Petitions were heard together CA No.1525-2016 etc 3 and allowed vide impugned Judgment dated 11.11.2015, whereby the office Order dated 26.9.2012 promoting the Appellant Dr. Farhat Abbas as Associate Professor of Cardiology (BPS-19) was set aside and a direction was issued for reconsideration of the appointment of an Associate Professor of Cardiology from among the candidates having the basic qualification and experience in the relevant speciality i.e. Cardiology. 3. Appellant Dr. Farhat Abbas challenged the impugned Judgment through Civil Petitions Nos.3548 & 3649/2015, while the Chief Executive, Lady Reading Hospital, Peshawar and Dean PGMI, Peshawar, who had been impleaded as Respondents before the learned High Court challenged the impugned Judgment before this Court through Civil Petitions Nos.52-P & 53-P of 2016. All the aforesaid Civil Petitions were heard together and leave was granted by this Court vide Order dated 26.5.2016. Hence, these Civil Appeals. 4. We have heard the learned counsel for the parties and have perused the available record. 5. Appellant Dr. Farhat Abbas had the qualification of FCPS in Medicine, while the private CA No.1525-2016 etc 4 Respondents/Writ Petitioners namely, Dr. Mehmood- ul-Hassan and Dr Hikmat Ullah Jan qualified FCPS in Cardiology. All the aforesaid Doctors were serving as Assistant Professors. However, Dr. Farhat Abbas had been appointed earlier as an Assistant Professor. In pith and substance, it was the case of the Writ Petitioners/private Respondents that under the law only, the Assistant Professor, inter alia, having FCPS in Cardiology could be considered for the appointment as an Associate Professor of Cardiology, which qualification was not possessed by Appellant Dr. Farhat Abbas. It was also the case of the private Respondents that Regulation 19 of the Regulations 2011 scribing to the contrary was illegal and invalid. 6. It is a common ground between the parties that the qualification for appointment of teaching staff in Medical Institutions is governed by the Regulations framed by the PMDC. The current Regulations, invoked and applicable to the facts of this matter, are the Regulations of 2011, referred to above. With regard to the additional qualification and experience relevant for appointment as an Associate Professor of Cardiology is prescribed as follows:- CA No.1525-2016 etc 5 “Required postgraduate (additional) qualification. PM&DC level III qualification in respective subject or general FCPS / M.S/M.D OR other equivalent level III qualification in the speciality approved by SRC and recognized / registered by PM&DC. Required experience. Five years teaching experience as an Assistant Professor in the relevant subject” 7. Furthermore, the said Regulations of 2011 are also contained Regulation 19, which reads as follows:- Regulation-19 “Eligibility for appointment in the sub- specialities like cardiology, Psychiatry, Cardiac Surgery, Orthopedic Surgery etc shall be as per a level III qualification in the sub-specialities. However, a candidate who possess postgraduate qualifications like FCPS, MD, MS in General Medicine or General Surgery etc is also eligible for appointment as Assistant Professor in the sub-specialities if he has at least three years teaching experience in a recognized institute in the relevant sub-speciality and then shall be promoted in the same sub- specialities as Associate Professor and Professor with the requisite teaching experience as prescribed in these Regulations under the respective speciality. However for appointment as senior registrar in the sub-speciality, there shall be no prerequisite of experience in that sub-speciality only if the candidate already holds and qualifies for a position of senior registrar in General Medicine or General surgery as the case may be. Once a holder of qualifications like FCPS MD, MS in General Medicine or General Surgery etc; attains the post of Assistant Professor in a sub-speciality than there shall be no preference given to specific sub-speciality degree holder for subsequent posts.” CA No.1525-2016 etc 6 8. An accumulative reading of the two provisions in juxtaposition leaves no manner of doubt that the academic qualification, include the Level III qualification in the sub-specialities or General FCPS. Furthermore, Regulation 19 clearly provides that if a candidate is qualified for the position of Senior Registrar in General Medicine or General Surgery etc and is a holder of FCPS, MD, MS in General Medicine or General Surgery etc and attains the post of Assistant Professor in a sub-speciality then no preference will be given to a person, who is holding the FCPS in the requisite field, for the purpose of the appointment to further post including that of Associate Professor. It is a common ground between the parties that Appellant Dr. Farhat Abbas in terms of Regulation 19, reproduced hereinabove, holds the requisite qualification, as an Assistant Professor of Cardiology with the requisite experience, hence was entitled to be considered for the appointment and was appointed as an Associate Professor of Cardiology. It is also a matter on record that Appellant Dr. Farhat Abbas is senior to the private Respondents namely, Dr. Mehmood-ul-Hassan and Dr. Hikmat Ullah Jan. CA No.1525-2016 etc 7 9. It is perhaps in view of the clear and obvious interpretation of Regulations, 2011 that the private Respondents challenged the vires of Regulation 19 of Regulations, 2011, which have been framed in exercise of the powers conferred under Section 33(2) of the Pakistan Medical & Dental Council Ordinance, 1962. The learned counsel for the private Respondents at the bar could not identify how the said Regulations, 2011 particularly, Rule 19 is ultra vires to the PM&DC Ordinance, 1962. In fact, it has not been so held by way of the impugned Judgment nor the Regulation 19 has been struck down. Furthermore, none of the grounds available in law for striking down the said subordinate legislation were pleaded or established on record either before the learned High Court or before this Court. In this view of the matter, we are not persuaded to hold that the Regulation 19 of the Regulations of 2011 is ultra vires or invalid. 10. As a consequence whereof, in view of the clear and obvious import of the Regulations of 2011 more particularly Regulation 19, Dr. Farhat Abbas was duly qualified to be promoted as an Associate Professor of Cardiology and the Office Order of his CA No.1525-2016 etc 8 appointment as an Associate Professor of Cardiology was valid in law and could not be set aside by the learned High Court. 11. Consequently, in the above circumstances, these Civil Appeals are liable to be allowed and the impugned judgment dated 11.11.2015 is also liable to be set aside and the Writ Petitions Nos.2926-P of 2012 and 3000-P of 2012 filed by the private Respondents merit dismissal. 12. The aforesaid are the reasons of our short order of even date, which are reproduced herein below:- “We have heard arguments of learned ASCs for the parties and perused the case record. For the reasons to be recorded separately, these appeals are allowed. The impugned judgment is set aside and Writ Petitions, filed by Respondent No.1 in these cases, before the Peshawar High Court are dismissed.” Chief Justice Judge Islamabad, the Judge 24th October, 2016 ‘APPROVED FOR REPORTING’ Safdar/*

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE UMAR ATA BANDIAL CIVIL APPEALS NO. 1540 and 2106 OF 2006. (On appeal from the order dated 27.06.2006 by the Lahore High Court, Lahore passed in C. R. Nos. 1325 of 2005 and 782 of 1998). Khurshid Ahmad and others. Deputy Admin Evacuee Trust Property Board Faisalabad. …Appellant(s) Versus Rana Mumtaz Ahmad and others. Ghani and another. …Respondent(s) For the Appellant(s): Syed Zafar Ali, Sr. ASC. (in CA.1540/2006) Hafiz S. A. Rehman, Sr. ASC (in CA.2106/2006) For the respondents: Malik Muhammad Qayyum, Sr. ASC. Hafiz S. A. Rehman, Sr. ASC. Mr. M. Munir Peracha, ASC. Hafiz M. Yousaf, ASC. (in CA.1540/2006) Mr. M. Akram Sh., Sr. ASC. Hafiz M. Yousaf, ASC. Malik M. Qayyum, Sr. ASC. Mr. Naveed Akhtar, ASC. (in CA.2106/2006) Date of Hearing: 11.12.2015. (Judgment Reserved). J U D G M E N T EJAZ AFZAL KHAN, J.- Civil Appeal No.1540/06: This appeal with the leave of the Court has arisen out of the judgment dated 09.05.2006 of Lahore High Court whereby the learned Single Judge in its Chambers dismissed the revision petition filed by CIVIL APPEALS NO. 1540 and 2106 OF 2006 2 the appellant. Facts of the case as narrated in para 2 of the leave granting order read as under:- “2. The brief facts for disposal of this petition of that petitioners and respondents No. 4 and 5 filed a suit against respondent Nos. 2 and 3 for specific performance of agreement dated 28.03.1995 in respect of land comprised in Killa Nos. 1, 2, 9, 10, 11, 20 and 21 of square No. 35, and killa No. 228, 13 to 18, 24 and 25 of square No. 36 measuring 187 kanals, 1 marla situated in Chak No. 124/JB Tehsil and District Faisalabad. The suit was decreed on conceding statements dated 18th December, 1995 and 21st January, 1996 whereby the suit was decreed to the extent of 15 kanal in favour of respondent No. 5 and the suit for the remaining area was decreed in favour of the petitioners and respondent No. 4 in equal-shares vide judgment and decree dated 25.1.1996. After a lapse of more than seven years on 28th July, 2003 respondent No. 1 Rana Mumtaz Ahmed filed an application under section 12(2) CPC in the Court of learned Civil Judge Faisalabad against the plaintiffs and defendants in the suit for setting aside of judgment and decree dated 25.1.1996 on the ground that it was obtained by misrepresentation and fraud. Learned Civil Judge, First Class, Faisalabad vide order dated 15.3.2005 set aside the judgment and decree of the Trial Court. At the same time learned Civil Judge ordered impleadment of CIVIL APPEALS NO. 1540 and 2106 OF 2006 3 respondent No. 1 Rana Mumtaz Ahmed as a party in the said suit”. 2. The points requiring consideration have been formulated in para 4 of the leave granting order which reads as under:- “4. We have heard the arguments of Syed Ali Zafar, ASC for the petitioners and have perused the record as well as the provisions of law applicable to the case and have come to the conclusion that the following questions require consideration and examination : (i) whether the judgment and decree of the trial Court was obtained by way of fraud, mis-representation or want of jurisdiction making out a ground for entertainment of the application under Section 12(2) CPC; (ii) whether in view of the provisions of section 27 of the Specific Relief Act the application under section 12(2) CPC was barred and ought not to have been entertained; (iii) Whether the order passed by learned Civil Judge, Faisalabad allowing the application under section 12(2) CPC and setting aside the judgment and decree is not contrary to and in violation of section 27 of the Specific Relief Act; CIVIL APPEALS NO. 1540 and 2106 OF 2006 4 (iv) Whether in deciding an application under section 12(2) CPC the learned Civil Judge, First Class, Faisalabad acted within jurisdiction to allow impleadment of respondent No. 1 as a party in the suit; (v) whether by ordering impleadment of respondent No. 1 as a party in the suit, the learned Civil Judge, First Class revived the claim of respondent, Rana Mumtaz Ahmed to agitate his claim over the land in question which otherwise had become seemingly time barred; and (vi) whether the judgment of the High Court suffers from non-consideration of above material questions.” 3. Civil Appeal No.2106/06: This appeal has arisen out of the judgment dated 9.5.2006 of the Lahore High Court whereby the learned Single Judge in its Chambers dismissed the revision petition filed by the appellant. Points raised and noted at the time of leave read as under:- “After hearing the learned counsel for the petitioner at length, leave to appeal is granted to consider; inter alia, whether the jurisdiction of the Civil Courts was ousted in terms of Section 14 of the Evacuee Trust Property (Management and Disposal) Act No.Xiii of 1975, unless order of the Chairman CIVIL APPEALS NO. 1540 and 2106 OF 2006 5 was shown to be patently void and without jurisdiction.” 4. The learned ASC appearing on behalf of the appellant in CA-1540/06 contended that where the application filed by respondent No.1 neither mentioned the source of knowledge nor explained the reasons of delay of each day in filing the petition, his application under Section 12(2) CPC was liable to be dismissed; that the respondent who also claimed to have entered into an agreement to sell with Ghani could not get anything out of the suit on reversal of the decree under Section 12(2) CPC when he never instituted a suit for specific performance of contract, the more so when it was not asserted that the appellants ever knew about the agreement dated 28.01.1990 and that in the absence of any allegation of fraud or misrepresentation or want of jurisdiction, application under Section 12(2) merited outright dismissal. 5. Learned ASC appearing on behalf of the respondents contended that where respondents were never served in accordance with the requirements of law any judgment and decree passed at their back could not stand, therefore, their application under Section 12(2) of the CPC was rightly allowed and that the judgment and decree of the High Court maintaining the same being free from any infirmity is not open to any exception. CIVIL APPEALS NO. 1540 and 2106 OF 2006 6 6. Learned ASC appearing on behalf of the appellant in CA-2106/06 contended that where the property forming subject matter of the dispute was evacuee trust property, it could not have been allotted to anyone; that Ghani claimed this property on the basis of RL-II which appears to be bogus on the face of it. He next contended that if and when a question arises whether an evacuee property is attached to charitable, religious or educational trust or institution it shall be decided by the Chairman Evacuee Trust Property Board (ETPB) whose decision shall be final and shall not be called in question in any Court. He further contended that where the legislature has created a forum for deciding such question recourse must be had to that as jurisdiction of any other Court is expressly barred by Section 14 of Evacuee Trust Property (Management & Disposal) Act. The learned ASC argued further that where the Chairman Evacuee Trust Property Board after taking cognizance of the matter and recording evidence of the parties came to the conclusion that the property forming subject matter of dispute is an evacuee trust property, its judgment being final could not be called in question in a Civil Court. The respondent, the learned ASC maintained, in the first instance filed a revision before the Federal Government but for the reasons best known to him withdrew it; notwithstanding he could have pursued it and then filed a writ petition in the High Court if the decision of the Federal Government happened to be against him, but his failure to do so has blessed the judgment of the Chairman ETPB with finality. The decision of the Civil Court, the CIVIL APPEALS NO. 1540 and 2106 OF 2006 7 learned ASC by concluding his arguments contended, being coram non judice has no effect altogether. The learned ASC in support of his contention placed reliance on the case of Evacuee Trust Property Board. Vs. Mst. Zakia Begum and others (1992 SCMR 1313). 7. The learned ASC appearing on behalf of the respondents in Civil Appeal No. 2106 of 2006 contended that where the property being evacuee has been allotted to respondent No. 1 as back as 24.04.1960 vide RL-II No. 561 and at no stage has it been treated as evacuee trust property, claim of the Evacuee Trust Board was absolutely unjustified and so was its decision declaring it to be evacuee trust property vide judgment dated 03.01.1995. He next contended that inquiry was allegedly conducted as to the genuineness of the allotment of the property to the respondent but it being one sided has no effect that too when it has not been proved in accordance with law before any Court. The learned ASC by referring to the case of Muhammad Jamil Asghar. Vs. The Improvement Trust, Rawalpindi (PLD 1965 SC 698) contended that Evacuee Trust Board can only have assumed jurisdiction to decide if a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or otherwise, but where there is no such question, the very jurisdiction of the Evacuee Trust Board to inquire into the matter becomes questionable. The learned ASC next contended that where the property in dispute has been in possession of the allottee ever since its allotment, claim of the Evacuee Trust Board would collapse like a house of cards. He next contended that CIVIL APPEALS NO. 1540 and 2106 OF 2006 8 revision petition before the Federal Government or a writ petition could have been filed before the High Court but where in view of the judgment rendered in the case of Federation of Pakistan through Secretary, Ministry of Religious Affairs/Minority Affairs, Government of Pakistan, Islamabad. Vs. Mufti Iftikhar-Ud-Din and another (2000 SCMR 1) remedy of revision before the Federal Government has been held to be inadequate and the determination of disputed questions of fact without recording the evidence was not possible, recourse was rightly had to the Civil Court which being just and proper in the circumstances of the case cannot be looked askance at. He next contended that an isolated entry in the revenue papers showing the property to be Gaoshala Society Bar cannot make it charitable in the absence of any document showing its dedication to charitable, religious or educational purposes. The learned ASC by concluding his arguments contended that where there is no evidence much less conclusive on the record to show that the suit property being an evacuee property has ever been attached to charitable purposes etc., the judgment rendered by the Chairman Evacuee Trust Board cannot take precedence over the judgment of the Civil Court. 8. We have gone through the entire record carefully and considered the submissions of the learned ASCs for the parties. 9. Before we deal with the tug of war going on between the appellants and respondent of Civil Appeal No. 1540 of 2006 CIVIL APPEALS NO. 1540 and 2106 OF 2006 9 we would like to see as to what is the nature of the property; whether it is evacuee property simplicitor or Evacuee Trust Property; whether it has ever been allotted to Ghani, respondent No. 1 in Civil Appeal No. 2106 of 2006; and whether it could be treated as a property attached to charitable, religious or educational trust or institution. 10. A look at the extracts from the record of rights for the years 1938-1939 and onward would reveal that this property has been entered as Gaoshala Society Bar. These entries have been repeated till 1960-1961. After 1960-1961 the Auqaf Department took the control and management of this property and had been managing this property through lease to different persons as is evident from the entries made in the periodical records of 1964- 1965, 1968-1969, 1980-1981, 1984-1985 and 1988-1989. Respondent No. 1 claims to be the allottee of this property through RL-II mentioned above but at no stage of time any entry of its allotment to the respondent figured in any of the periodical records ever since 1946-1947. The respondent alleged that this property was confirmed in his name but the entries in RL-II do not conform to his claim. He moved a petition under Sections 8 and 10 of the Evacuee Trust Property (Management & Disposal) Act No.XIII of 1975 in the Court of Chairman Evacuee Trust Board, Govt. of Pakistan but he could not substantiate his claim that the property in dispute was evacuee and that he was its lawful allottee. Even entries in naqsha taqseem do not support the contention that the property in dispute has ever been allotted to CIVIL APPEALS NO. 1540 and 2106 OF 2006 10 the respondent. The evidence led in this behalf overwhelmingly proves that the property is Evacuee Trust Property ever since late 30s. The surprising part of the litigation is that the respondent himself invoked the jurisdiction of the Evacuee Trust Board for its verdict about the nature of the property but when the verdict given by the Board turned against him, he turned the table on the Board and proceeded to question its verdict through a revision petition. Somehow he withdrew it and instituted a civil suit questioning the verdict of the Chairman Evacuee Trust Board notwithstanding such verdict being amenable to the revisional jurisdiction of the Federal Government in the hierarchy established under the Act and then Constitutional jurisdiction of the High Court, could not have been challenged in the Civil Court especially when its jurisdiction was barred by Section 14 of the Evacuee Trust Properties (Management and Disposal) Act, 1975. 11. Now the question arises where jurisdiction of the Civil Court is expressly barred and the Court exercising jurisdiction under Section 8 of the Evacuee Trust Properties (Management and Disposal) Act is a Court of Plenary Jurisdiction in view of the provision contained in Section 21 of the Act, for the purposes of deciding the question, whether an evacuee property is attached to charitable, religious or educational trust or institution, how could a Civil Court sit in judgment over the judgment of the Chairman Trust Board when the law has blessed it with finality and made it immune from being questioned in any Court. In the case of Evacuee Trust Property Board. Vs. Mst. Zakia Begum and others CIVIL APPEALS NO. 1540 and 2106 OF 2006 11 (supra) this Court after analyzing the relevant provision of the Evacuee Trust Properties (Management and Disposal) Act, held that the Chairman Evacuee Trust Property under Section 8 of the Act alone is competent to decide whenever any question arises as to whether an evacuee property is attached to charitable, religious or educational trust or institution or otherwise and that proceeding before the Civil Court shall be coram non judice. The same view was reiterated and reaffirmed in the case of Evacuee Trust Property Board through Deputy/Assistant Admiistrator, Evacuee Trust Property, Peshawar. Vs. Ali Bahadur (PLD 2011 SC 126) by holding as under :- “Analyzing section 14 ibid, it is unambiguous that the jurisdiction of the civil Courts has been barred with respect to any matter which an officer appointed under the Act is empowered to determine; such jurisdiction is also ousted to grant and issue an injunction, process or order in respect of any action taken or to be taken by such officer in exercise of any power conferred by or under the Act. Undoubtedly, the Chairman of the Evacuee Trust Property Board is an officer within the contemplation of the section. Therefore, in order to settle the question about the ouster of jurisdiction it seems expedient to examine, what was the proposition involved in the suit and whether such a question was determinable by the Chairman or not: In this respect, it is foundational to evaluate the claim of the respondent in his suit/plaint; on the perusal thereof it is vivid that the respondent is seeking a declaration that the suit property is his exclusive CIVIL APPEALS NO. 1540 and 2106 OF 2006 12 ownership and is not an evacuee trust property, consequently the appellant should be precluded from interfering into his ownership rights and apprentices thereto; the appellant in defence joined issue with the respondent on these factual aspects and claimed the suit property being an evacuee trust property and it is on this account that the jurisdiction of the Court was challenged. Therefore, the key issue before the Court would be whether the property is an evacuee trust property otherwise? Now when the provisions of section 8 of the Act are adverted to, it specially mention “if a question arises whether an evacuee property is attached to a charitable, religious or educational trust, or not it shall be decided by the Chairman” meaning thereby that notwithstanding whether a declaration in terms of section 8 has been made or not by the Chairman, yet even if a question has arisen at any point of time about the status of the property it shall be the Chairman alone who under the Act shall be competent and empowered to determine and decide the question and the Court in view of the bar contained in Section 14 shall have no jurisdiction in the matter”. 12. The argument that an isolated entry in the revenue papers showing it to be Gaoshala Society Bar cannot make it charitable in the absence of any document showing its dedication to charitable, religious or educational purposes is not correct as an argument of similar tenor was turned down by this Court in the CIVIL APPEALS NO. 1540 and 2106 OF 2006 13 case of Evacuee Trust Property Board. Vs. Rahim Khan and 3 others (1989 SCMR 1605), by holding as under:- “The question of law noticed in the leave granting order ‘whether it is necessary to produce the deed of trust in order to show the real purpose of the trust’ has not been pressed as there is no representation from the side of the respondents. We may, however, observe that according to section 407 of the Principles of Hindu Law by D.F. Mulla (10th Edn.) no writing is necessary to create an endowment except where the endowment is created by a will, if the case is governed by the Indian Succession Act, 1925. The learned author in the commentary, has also referred to case law holding that the dedication of land for public temple is not a gift within the meaning of section 122 of the Transfer of Property Act, and, consequently, does not require to be effected by a registered instrument. We, are therefore, of the firm view that the evidence of extract from the Property Register showing the property to be in the name of the temple is sufficient for the purpose of holding that it is attached to a religious trust. It may be clarified, however, that while giving effect to this finding the relevant authorities will take into consideration the provisions of section 10 of the Evacuee Trust Property (Management and Disposal) Act, 1975 (Act XIII of 1975) under which property utilized bona fide against the satisfaction of verified claims in CIVIL APPEALS NO. 1540 and 2106 OF 2006 14 respect of which P.T.D. were issued prior to June, 1968 have been validated and saved”. 13. When we analyze this case in the light of the paragraph quoted above, it appears to be better than the case cited above, on the following grounds :- a) that this property has been entered as Gaoshala Society Bar ever since 1938-1939 to 1960-1961; b) that nothing has been brought on the record to show that it has ever been individual property; c) that it has never been in possession of the respondents ever since its allotment; and d) that it has been under the control and management of the Auqaf Department ever since 1964-1965, which conclusively prove that the property being evacuee has been attached to charitable, religious and educational trust or institution. Above all else the declaration given by the Chairman Evacuee Trust Board which went unchallenged and thus attained finality prove that the property in dispute is evacuee trust property from whatever angle it is looked at. Reference to the case of Muhammad Jamil Asghar. Vs. The Improvement Trust, Rawalpindi (supra) has no application to the case in hand when the facts averred in the application moved by the respondent Ghani raised the question whether the property in dispute is attached to a charitable, religious or educational trust or institution etc., or not. A CIVIL APPEALS NO. 1540 and 2106 OF 2006 15 reference to the case of Federation of Pakistan through Secretary, Ministry of Religious Affairs/Minority Affairs, Government of Pakistan, Islamabad. Vs. Mufti Iftikhar-Ud-Din and another (supra) too has no relevance to the case in hand as the provisions of Sections 8, 10 and 21 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 have not been held to have contained anything contrary to the injunctions of the Holy Quran and the Sunnah of the Holy Prophet (PBUH), and that the Courts already in place can continue, as final order so passed by the Federal Government is assailable before the High Court in exercise of its Constitutional Jurisdiction. The relevant paragraph is thus reproduced for the facility of the reference which reads as under :- “The providing of right of appeal against order of the Chairman passed under Section 8 of the Act XIII of 1975 should have been provided to comply with the requirements of principles of administration of justice in Islam as immunity sought to be granted to such an order by providing an inadequate remedy of revision would be repugnant to the injunctions of Islam. The appellant is accordingly directed to suitably amend the Evacuee Trust Properties (Management and Disposal Act, 1975 (Act XIII of 1975) by inserting a provision providing right of appeal against the order passed by the Chairman under Section 8 of the Act XIII of 1975. Such an appeal can be provided to lie before the High Court in line with the recourse adopted CIVIL APPEALS NO. 1540 and 2106 OF 2006 16 in the Displaced Persons (Compensation and Rehabilitation) Act, 1958 and the Displaced Persons (Land Settlement) Act, 1958. If the declaration as to the nature of the property made by the Chief Settlement Commissioner and later by the Chairman could be made scrutable through an appeal to the High Court, no possible can be raised to the providing of the same remedy now under Act XIII of 1975. It is also to be noted that against the orders passed on other matter by the officers appointed by the Board, appeal has been provided to the higher officers of the hierarchy including the Chairman and against orders so passed the revision lies to the Federal Government. The said course of action can continue as before, as final order so passed is further assailable before the High Court by invoking the Constitutional jurisdiction vesting in it under Article 199 of the Constitution and a further petition for leave to appeal before the Supreme Court under Article 185 of the Constitution of Islamic Republic of Pakistan, 1973. The remedies, so provided, considering the nature of the legislature are in such matters sufficient and adequate. The amendment directed in the above terms shall be made in Act XIII of 1975 by the appellant by the 30th July, 1999”. The paragraph reproduced above is clear and unambiguous. Neither the judgment rendered in the case of Federation of Pakistan through Secretary, Ministry of Religious Affairs/Minority CIVIL APPEALS NO. 1540 and 2106 OF 2006 17 Affairs, Government of Pakistan, Islamabad. Vs. Mufti Iftikhar-Ud- Din and another (supra) nor the paragraph reproduced above in any way leaves any scope for Civil Court to assume jurisdiction in the matters falling within the purview of Sections 8, 10 and 14 of the Act. The fora below as well as the High Court laboured under misconception to circumvent the application of the Act to justify assumption of jurisdiction which is clearly barred. 14. When preponderance of documentary as well as oral evidence on the record and verdict of the Chairman Evacuee Trust Board prove that the property in dispute is an evacuee trust property, the appellants and respondents in Civil Appeal No. 1540 of 2006 are left with no locus-standi much less a cause of action to lay their hand on its ownership in any form and in any forum. 15. As a sequel to what has been discussed above, appeal filed by the Evacuee Trust Board is allowed, the impugned judgments are set-aside while the suit pending in Civil Court in respect of property in question together with the application under Section 12(2) CPC is dismissed. Needless to say that where the basic order in favour of respondent No. 1 has been declared void ab-initio, entire superstructure raised thereon would automatically collapse. Judge Judge Announced in Open Court at Islamabad on 13.01.2016. Judge ‘Not Approved For Reporting’ M. Azhar Malik\

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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 SAYYED MAZAHAR ALT AKBAR NAQVI Civil Appeal No. 1546 of 2019 AND Civil Petitions Nos.2503 to 2519 & 2660 of 2019 Against judgments dated 25.02.2018 & 23.04.2019 of Federal Service Tribunal, Islamabad, passed in Appeals No.3622(R)CS of 2017 and 3192 (R)CS of 20212) etc. Secretary, M/o Finance, Islamabad, etc Appellants (in CA#1546/19) DG, FDE, Government of Pakistan, Petitioners(,. CPs250-25I9 & 2660119) etc I Versus Tayyaba Halim Subhani Irfan Mehmood & Another Tahir Ullah & another Javed Iqbal & Another Syed Sajjad All Shah & Another Hafiz Atta Ur Rehman & Another Mrs. Khalida Nasim & Another Rubina Kausar & Another Adeela Tabasum & Another Mrs. Sobia Imam & Another Mrs. Najma & Another Mrs. Attia Kaleem Anwar & Another Mrs. Farah Saeed & Another Mrs. Lubna Chaudhry & Another Mrs. Tahira Akbar & Another Mrs. Salama Khatoon & Another Saeed ur Rehman & Another Syed Tajammal Hussain Bokhari Shah & Others Tayyaba Halim Subhani & another CA 154612019 C.P 2503/2019 C.P 2504/2019 C.P 250512019 C.P 250612019 C.P2507/2019 C.P 2508/2019 C.P2509/2019 C.P 251012019 C.P 251112019 C.P 251212019 C.P 2513/2019 CP 2514/2019 CF 251512019 C.P2516/2019 C.P 251712019 CF 251812019 C.P2519/2019 C.P 2660/2019 For the Appellant /Petitioners: .Respondents Mr. Sajid Ilyas Bhatti, Addl.AGP M. Rehan, AD Legal M. Ahmed, AD Legal — CIVIL PETITION NOS.2503 to 2519& 2660 OF 2019 2 in CA For the Respondent(s): Respondent-in-Person 1546/2019 Date of Hearing: Jt AS C Hafiz S.A. Rehman, for Respondent No. 1 and Mr. M. Sharif Janjua, AOR in all cps 27.01.2021 IJAZ UL ABSAN, J.- Through this single judgment, we intend to decide Civil Appeal No. 1546 of 2019 (hereinafter referred to as "CA") and Civil Petitions No. 2503 to 2519 and 2660 of 2019 (hereinafter referred to as "CP") as they involve common questions of law. 2. Through the instant Appeals/ Petitions, the Appellants/ Petitioners have challenged the Judgment of the Federal Service Tribunal, Islamabad (hereinafter referred to as "Tribunal") dated 15.02.2018 passed in Service Appeal No. 3622(R)CS/2017 and judgment dated 23.04.2019 passed in Service Appeals No 3192(R)CS to 3196(R)CS of 2012, 3230(R)CS to 3238(R)CS of 2012, 90(1?)CS/2013, 9 1(R)CS/2013, 679(R)CS/20 16, and 3622(R)CS/20 17 (hereinafter referred to as "Impugned Judgments"). The Tribunal through the Impugned Judgments accepted the Service Appeals filed by the Respondents and ordered the Appellants/ Petitioners to provide pay protection to the Respondents by counting the service they had rendered on daily wage basis for pensionary benefits and pay. 3. The necessary facts giving rise to this us are that the Respondents were appointed as teachers/ lecturers CIVIL PETITION NOS2503 to 25198.2660 OF 9019 3 against their respective posts. The Respondent in the CA retired upon reaching the age of superannuation w.e.f. 02.06.2017. Before her retirement, she had made a departmental representation through which she had requested her department to count the period for which she had worked on daily wage basis towards the calculation of her pensionary benefits. The Respondents in the CPs were recommended to be regularized by the Federal Public Service Commission w.e.f. 17.08.2010. They made representations to the effect that their previous service rendered on daily wage basis be counted towards their pay and pension benefits but to no avail. Aggrieved of the treatment meted out to the Respondents by the Appellants/ Petitioners, they approached the Service Tribunal, which allowed their Service Appeals through the impugned judgments. The Appellants/ Petitioners challenged the impugned judgments before this Court. 4. Leave to Appeal was granted by this Court in the CA vide order dated 17.09.2019 which is reproduced below for ease of reference: "Learned Additional Attorney General relies upon a judgment passed by a 5 member bench of this Court in the case of Chairman, Pakistan Railway, Government of Pakistan, Islamabad and others v. Shah Jehan Shah (PLD 2016 SC 534) to contend that the very issue dealt with by the Tribunal in the impugned judgment has been dealt with by this Court in the reported judgment where the payment of pensionary benefits are admissible to contract employees only after their qualifying regularized service and thus unless such qualifying regular service is rendered, the pensionary benefits could not be granted to the employees. 2. Leave to appeal is granted to consider inter alia the above submissions made by the learned Additional Attorney General,,." CNThPETfflOtNOS25O3 to 2$29&2660 0F2019 4 5. The learned Additional Attorney General contends that the service rendered on daily wage basis cannot be counted as qualifying service for pension under the relevant rules. As per Article 352 of the CSR, the Respondents cannot claim pay protection or that their daily-wage-service be counted towards pension because the said rule specifically bars the Respondents from making such claim insofar as the Respondents do not fulfil the three conditions mentioned therein i.e. that the service must be under the government, must be substantive and permanent, and, that the service must be paid for by the government. Further, allowing the Respondent's daily wage period to be counted towards pay protection and pensionary benefits would open floodgates of never-ending litigation. Lastly, the Respondents were not working continuously, and, even otherwise, this being a policy matter cannot be interfered with by Courts. 6. The Learned Senior ASC appearing on behalf of the Respondents contends that the act of the Appellants/ Petitioners of not giving pay protection to the Respondents and not allowing their service rendered on daily wage to be counted towards their pensionary benefits is discriminatory and exploitative. He adds that an identical order was passed by the Ministry of Education dated 25.01.2006 whereby benefits were allowed to lecturers, therefore, not granting the same to the Respondents who are teachers, represents a policy of discrimination and pick and choose. Further, the Respondents have been performing their duties to the satisfaction of the Government and, by not CIVIL PF,TITION N0S.2503 to 2519 & 2660 OF 2019 5 allowing them pay protection and by not counting their service rendered on daily wage basis for pensionary benefits is unjust and unfair. 7. We have heard the learned AAG and the learned Senior ASC appearing on behalf of the parties. The issues which fall for consideration of this Court are:- i. Could the service rendered by the Respondents on daily wages basis be counted towards their pension? ii. Were the Respondents employed as a stop-gap arrangement? iii. Could the Respondents be employed on daily wage basis considering the nature of their work? COULD THE SERVICE RENDERED BY THE RESPONDENTS ON DAILY WAGES BASIS BE COUNTED TOWARDS THEIR PENSION? 8. The learned counsel for the Respondents has relied upon CSR 361 and has argued that, in view of the said Rule, the Respondents were entitled to pension and pay protection. For ease of reference, CSR 361 is reproduced as under:- "361:- Except as otherwise provided in these Regulations, the service of an officer] does not qualify for pension unless it conforms to the following three conditions: First—the service must be under Government. Second.— the employment must be substantive and permanent. Third.—the service must be paid for by Government". 9. We have examined the Education Code 2006 issued by the Federal Directorate of Education. The learned Tribunal has held that the Respondents were being paid out of funds that were approved by the Government. In this I CIVIL PRTflIONNOS.2503 to 2519& 2660 OF 2019 6 respect, Paragraph 30 of the said Code is relevant which provides that the following: - "Heads of educational institutions shall be empowered to incur expenditure out of Students' Fund as per the upper limit of expenditure prescribed through a notification by the Department Head on the following items: (v) Payment to daily wage employees (teaching & non- teaching)" Paragraph 17 of the said Code provides that the Federal Directorate of Education would manage the Federal Government Educational Institution (Schools & Colleges), Islamabad Model Institutions, and Hostels. The learned AAG has not disputed the fact that the Respondents were working in institutions that were admittedly being managed by the Federal Directorate of Education. The Federal Directorate of Education has itself issued a Code which such schools are required to follow to regulate their affairs. The services of the Respondents were utilized by the Appellants/ Government to their satisfaction until the time the Respondents asked for pay protection and pension. As such, the learned Tribunal has correctly held that the Government cannot disassociate itself from the entire process and hold that the Respondents were not working under its supervision. It is the Federal Directorate of Education that has issued the said Code, and Paragraph 30 supra provides that the Federal Directorate of Education has empowered heads of institutions to manage pays and salaries of daily wage staff. It has not been argued before us that the said heads of institutions could not be delegated this task. The Government is fully empowered to CIVIL PETITION NO&2503 to 2519&2660 OF 2029 7 delegate some of its tasks for administrative convenience and efficient working as has been done in this case. 10. We have gone through the letter dated 26.08.04 issued by the FDE (Model Colleges Wing). The said letter provides an elaborate mechanism viz selection of teachers on daily wage basis. They are to appear in a test of 50 marks followed by an interview. Following this, their result is approved by a Committee and sent to the Director Colleges, Federal Directorate of Education who in turn seeks confirmation from the Director-General, Federal Directorate of Education. The said letter establishes that the Respondents were not arbitrarily appointed as a stop-gap arrangement. Their services were utilized by the Appellants/ Petitioners for years on end till they reached the age of superannuation, their services were substantive and permanent which were paid for on behalf of and with the consent or approval of the Government. 11. We find that although the employment of the Respondents was not permanent within the meaning of CSR 361, the establishment under which they were working was permanent and the fact that they rendered services for years shows that they were not employed on temporary basis as a stop-gap arrangement for short periods of time. Further, that the Federal Public Service Commission by recommending the Respondents for retention into service has confirmed their ability and qualification to hold these posts. It is an admitted fact that the Respondents have been working continuously for more than 5 years. We have gone through the memorandum CIVIL PETITION NO&2503 to 2519 & 2660 OF 2029 8 dated 25.01.2006 whereby it was stated by the Federal Directorate of Education that service rendered on an Ad Hoc basis could be counted towards pay and pensionary benefits. If the Appellants/ Petitioners have allowed the services of Ad Hoc teachers/ lecturers to be counted for pay protection and pension, it is hard to understand why the same was cannot be done in the case of the Respondents. The principle of similarly placed persons dictates that the Respondents also deserve to be treated in the same manner as others who were granted the benefits of pay protection and pension from the date of their initial appointment on daily wages basis. The Respondents have been discriminated against which is in violation of their fundamental rights guaranteed to them by the Constitution of the Islamic Republic of Pakistan, 1973. 12. The learned Senior ASC for the Respondents has placed reliance on the case titled Ikram Bari and 524 others vs National Bank of Pakistan (2005 SCMR 100) in support of the submission that the service rendered on daily wages basis can be counted for pension and pay. The relevant portion of the judgment ibid is reproduced as under for ease of reference: - "An Islamic Welfare State is under an obligation to establish a society which is free from exploitation wherein social and economic Justice is guaranteed to its citizens. The temporary Godown staff and the daily wages employees were continued in service of the Bank on payment of meagre emoluments fixed by the Bank. In most of the cases of these employees, there were artificial breaks in their service so as to circumvent the provisions of the Labour Laws and the Rules of the Bank and to deny them the salaries and other service benefits of regular employees. In some cases, the Bank did not issue formal letters of appointment or termination to the employees so as to preclude them to have access to CIVIL PETITION 1105.2503 to 2529 & 2660 OF 2019 - 9 justice. There was no equilibrium of bargaining strength between the employer and the employees. The manner in which they had been dealt with by the Bank was a fraud on the Statute. A policy of pick and choose was adopted by the Bank in the matter of absorption/ regularization of the employees. By Article 2-A of the Constitution, which has been made its substantive part, it is unequivocally enjoined 'that in the State of Pakistan principle of equality, social and economic justice as enunciated by Islam shall be fully observed which shall be guaranteed as fundamental right. The principle of policy contained in Article 38 of the Constitution also provide, inter alia, that the State shall secure the well being of the people by raising their standards of living and by ensuring equitable adjustment of rights between employers and employees and provide for all citizens, within the available resources of the country, facilities for work and adequate livelihood and reduce 'disparity in income and earnings of individuals. Similarly, Article 3 of the Constitution makes it obligatory upon the State to ensure the elimination of all forms of exploitation and the gradual fulfilment of the, fundamental principle, from each according to his ability, to each accordin g to his work. It is dtfficult to countenance the approach of the Bank that the temporary Godown staff and the daily wages employees should be continued to be governed on disgraceful terms and conditions of service for an indefinite period. In view of section 24-A of the General Clauses Act 1897, the National Bank was required to act reasonably, fairly and justly. An employee being jobless and in fear of being shown the door had no option but to accept and continue with the appointment on whatever conditions it was offered by the Bank". In addition to the aforenoted excerpt, a direction was passed in the judgment of Ikram Bari ibid to the effect that the previous service rendered by the Petitioners in the said case shall be counted towards retirement/ pensionary benefits. It was held as follows:- "The Civil Petitions.. .filed by employees seeking financial back-benefits and waiver of conditions of ,regularization/ reinstatement are disposed of with the direction to the National Bank to regularize/ absorb them in service with effect from 15-9-2003, subject to the conditions as laid down in para. 10 of the impugned judgment. The National Bank is directed to issue them appointment letters within one month. Moreover, the previous service rendered bi, them with the Bank shall be counted towards retirement! pensionarq benefits .(Underlining is ours) ----4—, CIVIL PETITION N0S2503 to 2529 & 2660 OF 2019 10 In view of the above position, the argument of the learned AAG that the service period of the Respondents rendered on daily wages could not be counted towards their pension is misconceived. The said period could and should be counted towards pension especially when the Respondents had been working continuously for different periods for the last many years. WERE THE RESPONDENTS EMPLOYED ON A STOP-GAP ARRANGEMENT? 13. The learned DAG has argued that the contracts of the Respondents were not renewed/ extended, but they were offered new contracts from time to time after their previous contracts had expired. The record reveals that such breaks were artificial. The said breaks cannot render the employment of the Respondents to be purely temporary. The Respondents have been performing their duties in their respective schools since long and such artificial breaks in their employment do not negate the fact that the Respondents had been continuously serving the Appellants! Petitioners for a long time. Reliance in this regard is placed on the case titled Board of Intermediate and Secondary Education, Multan vs Muhammad SaUd 12019 SCMR 233 Supreme Court) wherein it was held as follows:- "It is an admitted position that the respondents before us have been working with the petitioner-Board since long, however, in their clumsy attempt to break the continuity of their service, the petitioner has been employing them for 89 days only, and has been re-hiring them for the next 89 days, and thus continued to avail their service for a long period by creating artificial breaks in their service period. The fact that they have, in fact, continuously served the petitioner for a long period of time, albeit the breaks created by the petitioner, as noted above, clearly show that they have been performing the job of a CIVIL PETITION NOS2503 to 2519&2560 OF 2019 permanent nature and have not been serving on casual posts." It is not the case of the Appellants before us that the Respondents were temporarily working against temporary posts and that such posts no longer exist. The fact that FPSC was approached to test the qualifications and antecedents of Respondents and make its recommendations by itself shows that these posts were permanent in nature. 13. As noted above, the said Principals of the respective Schools where the Respondents were performing services were acting in the aide of the Appellants/ Petitioners under an elaborate mechanism/ modus operandi provided by the Appellants/ Petitioners. The powers of the said principals were being exercised on the instructions and under supervision of the Appellants/ Petitioners and with their express consent and approval. 14. The learned DAG has stated that there were breaks in the services rendered by the Respondents, however, he has been unable to show from the record where and when there were such breaks in the daily wage services rendered by the Respondents. The only argument advanced by him in this regard is that the Respondents were working on a stop-gap arrangement. We are unable to agree with the learned DAG in this regard. By no stretch of imagination can it be conceived that when the Respondents were working against their respective posts for long periods (in some cases for more than 10 years), the same can by any definition of the word be C CIVIL PETITION P1052503 W 2519 & 2660 OF 2019 termed as a stop-gap arrangement. A stop-gap arrangement is one where a temporary arrangement is made for a limited time for a few months at the most until something better or more suitable can be found. Such an arrangement is typically made until someone can be hired permanently through the process provided in the law, rules or regulations. The Respondents were admittedly employed for long periods of time running into years and cannot be termed as stop-gap. The definition of "stopgap" provided in Collins Dictionary and as understood by Courts in our country clearly means:- "A stopgap is something that serves a purpose for a short time, but is replaced as soon as possible" 15. The meaning of a stopgap arrangement was interpreted by this Court in the case titled as Chairman Evacuee Trust PropertM Board and others vs Khawaja Shahid Nazir (2006 PLC(CS) 1261 Supreme Court) in the following terms:- "The Tribunal had failed to interpret the notification dated 29-6-2000 in its true perspective by ignoring the clear stipulation contained therein that respondent was appointed as Secretary BPS-19 and such appointment was till further orders. From such stipulation it can be inferred without anti doubt that it was not a regular appointment in accordance with section 11(l) of the Act and was by wait of stopgap arrangement. This Court in the case of Abdul Majid Sheikh v. Mushafee Ahmed and another PLD 1965 SC 208 while examining the effect of the phrase "a person holds an appointment till further orders" pronounced that it only means that he holds it till orders are passed terminating his services. "(Underlining is ours) The learned DAG has been unable to show us any document on the record which suggests that the Respondents were employed for a specific period of time subject to the arrival of permanent employees. The only term in this regard 0 CIVIL PETITION N0S2503 to 2519&2660 OF 2019 13 as found from the appointment orders of the Respondents is that there would be no commitment in this regard from either the Respondents or the Appellants/ Petitioners. The mere insertion of this vague term in the contracts of the Respondents does not mean that they were employed as a stop-gap arrangement. The Appellants/ Petitioners never terminated services of the Respondents. The Respondents retired from their services after they were regularized, that too in most, after more than 10 years of service. Adding artificial breaks to the employment of the Respondents does not convert the employment of the Respondents into a stop-gap arrangement. They were not employed for a short period till the arrival of someone permanent, but, were employed against their respective posts for almost the whole of their professional lives. As such, the argument of the learned DAG in this regard does not hold much water and the employment of the Respondents was to be treated as permanent in nature as correctly held by the Tribunal. COULD THE RESPONDENTS BE EMPLOYED ON DAILY WAGES BASIS CONSIDERING THE NATURE OF THEIR WORK? 16. Teachers strengthen the foundation of any state as well as play a pivotal role in nation building by imparting education which is necessary to uplift a society consisting of educated and aware citizens who believe in values and strengthen democracy and democratic values. Employing teachers on daily wages basis is not only detrimental to the education sector of Pakistan but is also a discouraging factor __________________________ 1—• CIVIL PETITION 1105.2503 to 2519 & 2660 OF 2019 14 for future teachers who in turn are demotivated and discouraged a profession which is pivotal in the lives of our future generations. It is pertinent to mention that primary education is a fundamental right guaranteed under Article 25-A of the Constitution of the Islamic Republic of Pakistan, 1973. The Universal Declaration of Human Rights also recognizes education as one of the most important rights of children. Article 3 of the Constitution provides that all forms of exploitation shall be eliminated. One of the reasons for which this becomes relevant to the present controversy is that notwithstanding the importance of the services they render to society, which have consequences for generations, the Respondents were made to work under uncertain conditions on the pattern of unskilled and uneducated or semi-educated labour hired on a daily wage basis for seasonal projects expected to last for a limited period. We are appalled at this irresponsible, casual and utterly unprofessional approach of the policy makers towards a matter as important and as serious as education of our future generations. We have no hesitation whatsoever in strongly deprecating the same. These actions of the Appellants/ Petitioners are not only contrary to Constitutional dictates but also contrary to the Principles of Policy enshrined in the Constitution which state that there has to be an equal adjustment of rights between employers and employees. 17. The Impugned Judgment of the learned Tribunal is well reasoned, proceeds on the correct factual and legal premises and has correctly applied the relevant law, rules and - CIVIL PETrTION NO&2503 to 25i9&2660 OF 2019 15 regulations to the facts and circumstances of the cases before us. No legal, jurisdictional defect, error or flaw in the Impugned Judgment has been pointed out to us that may furnish a valid basis or lawful justification to interfere in the same. The Learned AAG has not been able to persuade us to take a view different from the Tribunal in the facts and circumstances of the instant Appeal/ Petitions. We accordingly affirm and uphold the Impugned Judgment of the Learned High Court 18. For the reasons noted above, we find no merit in the Appeal and the same is accordingly dismissed. As for the Petitions, no question of law of public importance in terms of Article 212(3) of the Constitution has been raised. Accordingly, we find no merit in these Petitions and the same are dismissed. Leave to appeal is refused. Judge ISLAMABAD, THE 272h of January 2021 Hans LC/ AT&T APPROVED FOR REPORTING

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE QAZI FAEZ ISA MR. JUSTICE SAJJAD ALI SHAH CIVIL APPEAL NO.1547 OF 2019 (On Appeal from the judgment dated 01.08.2019 of the Lahore High Court, Lahore passed in ICA.210640/2018) Orient Power Company (Private) Limited through its authorized officer …Appellant(s) VERSUS Sui Northern Gas Pipelines Limited through its Managing Director …Respondent(s) For the Appellant(s): Mr. Salman Akram Raja, ASC For the Respondent(s): Kh. Ahmad Hosain, ASC. Date of Hearing: 12.12.2019 JUDGMENT MUSHIR ALAM, J.— The Appellant, through Civil Appeal No. 1547 of 2019 arising out of CPLA No.3027/2019, has challenged the legality of the order passed by the Learned Division Bench of the Lahore High Court1 in ICA No. 210640/208 in COS No.16/2017. Leave to Appeal was granted on 12.09.19 to consider the points raised by both the Parties in this case. I. FACTS: 1. The Appellant, Orient Power Company (Private) Limited2 is a private limited company incorporated under the laws of Pakistan, whereas the Respondent, Sui Northern Gas Pipelines Limited3 is a public limited company incorporated under the 1 Herein referred to as the “impugned judgment” 2 Hereinafter referred to as the “Petitioner” 3 Herein referred to as SNGPL CA 1547/19 2 Companies Ordinance, 1984. SNGPL is the sole authorized and licensed distributor of Natural Gas in the provinces of Punjab and Khyber Pakhtunkhwa. 2. The Appellant constructed and operated a power generation facility4 of approximately 212.7 Megawatts (MW). In this regard, the Appellant entered into a Power Purchase Agreement5 on 08.11.2008 with National Transmission and Dispatcher Company Limited6 for a term of thirty (30) years. The PPA governs the terms of the sale and purchase of Energy and Capacity to the Power Purchaser. 3. The Appellant also entered into an Implementation Agreement with the President of the Islamic Republic of Pakistan through Private Power and Infrastructure Board which establishes the framework under which the Complex is to be set up. 4. For the purposes of running the Complex, the Appellant required Natural Gas as a primary fuel, and for this purpose, Appellant entered into a Gas Supply Agreement7 with the Respondent. The Parties signed the GSA on 18.10.06 which contained a “Take or Pay Clause8”. Furthermore, the GSA’s purchase and supply arrangement were such that it was divided into two time periods: the first being the “Firm Delivery Period”, where the Respondent was required to deliver and sell to the Appellant all of the Complex’s requirements for Gas, up to the daily contract quantity, and the second being the “As-Available Period” which comprised of the three months excluded during the Firm Delivery 4 Herein referred to as the “Complex” 5 Herein referred to as the “PPA” 6 Herein referred to as the “Power Purchaser” 7 Herein referred to as the “GSA” 8Take-or-pay clause are common in the energy sector Contracts and, in particular, for gas sales agreements whereby the buyer agrees to either: (1) take, and pay the contract price for, a minimum contract quantity of gas each contracted period (the TOP Quantity); or (2) pay the applicable contract price for such TOP Quantity if it is not taken during the applicable period see Amoco v Teesside Gas 2001 UKHL 18) =[2001]1 All ER (Comm) 865 CA 1547/19 3 Period where the Respondent would provide Gas on ‘As Available’ basis. 5. During the Firm Delivery Period, the terms of the GSA stated that the Appellant had a gas entitlement of 38 MMCFD (million metric standard cubic feet per day). 6. Differences arose between the parties with respect to the Commissioning Period Start Date,9 during which the Complex would be tested, and the subsequent Commercial Operating Date,10 being the date when the Complex was to start its commercial operations, and the Appellant’s obligation to take or pay gas under clause 3.6 of the GSA during the CPSD and COD. 7. It was seen vide letter dated 01.07.09 that the parties agreed to appoint Mr. Khalid S. Ibrahim as the Expert11 under clause 18.2(g) of the GSA to resolve the dispute. The Expert heard the matter and issued his Determination12 on 19.12.09, holding that some amounts are due from the Appellant to the Respondents in terms of the Take-or-Pay Clause calculated on the basis of the declared CPSD13 and COD.14 The Appellant was directed to make payment in fifteen days. 8. On the basis of the Expert Determination, the Parties, on 11.01.10, executed the “Payment Agreement” which required the Appellant to make payment in three installments. Under the Payment Agreement, it was agreed that the Respondent would be entitled to a late payment surcharge at “Delayed Payment Rate, ”which would be paid until full payment is made. 9. For the period of 28.02.2011 till 10.05.2011, the Respondent did not supply, and also curtailed supply of gas to the Petitioner, 9 Herein referred to as “CPSD” 10 Herein referred to as “COD” 11 Herein referred to as the “Expert” 12 Herein referred to as the “Expert Determination” 13 Dated 30 September 2008 14 Dated 1 April 2009 CA 1547/19 4 contrary to the terms of the GSA. This was done through various letters written by the Respondent, whereby it purported to declare Force Majeure on account of certain alleged terrorist and sabotage activities. The Appellant was unable to operate the Complex on gas during this period and as a result, payment under the head of “Capacity Price” to be made by the Power Purchaser to Appellant under the Power Purchase Agreement with National Transmission and Dispatch Company Limited (the “Power Purchaser”) were withheld and disallowed up to an amount of Rs. 201,998,444/-. 10. The Appellant filed a Request for Arbitration (the “Earlier Arbitration”) due to the accrual of such losses. The Parties received the final award of this arbitration on 09.03.16, wherein it was held that Respondent’s claim of Force Majeure events could not be classified as such and, that Respondent was in breach of the GSA during those periods and that Appellant was entitled to compensation for the loss suffered. 11. Furthermore, under the Payment Agreement dated 11.01.10, the Appellant made all of the requisite payments to the Respondent except that of Rs. 104,133,296/-; which the Respondent claimed as late payment surcharge. 12. Simultaneously, another dispute arose between the Parties, with respect to six invoices issued by the Respondent from May to October 2011 under the GSA, which the Appellant contended was not due, as the Appellant had paid the full amount for the months in which it was not able to take up the Gas.15 13. The Parties decided to refer these disputes to Justice Khalil-Ur- Rehman Ramday (“Justice Ramday”) as per Section 18.2 of the GSA. However, it must be noted that the dispute pertaining to 15 April to November 2009, March to April 2010 and March 2011 CA 1547/19 5 the late payment surcharge under the Payment Agreement was not referred to Justice Ramday for determination,16 who declared in his Determination dated 11.06.14 that the Respondent was not entitled to retain the entire amount of money paid under Clause 3.6(a) of the GSA for which the gas was not taken, but may still be entitled to reasonable compensation under Section 74 of the Contract Act, 1872. 14. The Respondent referred the disputes relating to the unpaid invoices along with the dispute relating to late payment surcharge under the Payment Agreement to arbitration pursuant to Section 18.3 of the GSA, which provided for arbitration to be conducted in London under the rules of the London Court of International Arbitration (the “LCIA”) on 12.06.14. During the proceedings, the Parties submitted Expert Opinions by Mr. Makhdoom Ali Khan and Chief Justice (R) Tassaduq Jillani. 15. The Respondent, in the arbitration, claimed, inter alia: (i) A declaration that the Appellant illegally, and in breach of the GSA withheld a total amount of Rs. 603,202,083 from the bills raised by the Respondent pertaining to the months of May to October 2011; (ii) Late payment surcharge on unpaid amounts under the GSA calculated until 31 May 2014 in the amount of Rs. 485,678,790; (iii) Continuing late payment surcharge on outstanding amounts to be calculated from 31 May 2014 in accordance with the terms of the GSA; and (iv) Interest on any award from the date of award to the date of payment; 16. The Appellant advanced an objection to the jurisdiction of the Arbitral Tribunal and, defended the claim on the grounds inter alia-: (i) Declaration that the Respondent cannot raise any issues regarding the Payment Agreement in these proceedings. 16 As enumerated in Paragraph 8 CA 1547/19 6 Any issue with the Payment Agreement can only be settled as per laws of Pakistan and in a court of competent jurisdiction. Payment Agreement is a standalone agreement and the Appellant has not violated Payment Agreement; (ii) Declaration that the Appellant is entitled to retain the disputed amounts from the bills of the Respondent and therefore can retain the Make Up Gas amount; (iii) Declaration that Respondent cannot forfeit the Make Up Gas Amount under GSA or Pakistan law; (iv) Order Respondent that it either provides the Make Up Gas against the Make Up Gas Amount (i.e. Rs 603,202,083/-) or refunds the same; (v) Declaration that the Make Up Gas is available even after the expiry of the one Contract Year on “as available” basis; (vi) Declaration that any valid Force Majeure claims by the Respondent extends the period for Make Up Gas on a day to day basis including the obligation to supply gas for extended period; (vii) Declaration that the claims made by the Respondent through various letters/notices claiming existence of Force Majeure during the period from 28 February 2011 to 10 May 2011 were illegal, invalid, inapplicable and contrary to the facts and the law and Respondent is entitled to withheld capacity. 17. The Sole Arbitrator issued the Partial Award dated 27.02.17 and Final Award on 13.06.17 in the Arbitration wherein: (i) Arbitrator dismissed the claim of the Appellant that it did not have jurisdiction over the Payment Agreement; (ii) Respondent’s claim for Rs. 104,133,296/- was allowed; (iii) Respondent’s claim under the six invoices for Rs.603,202,083/- was stated to be the amount due under the invoices; (iv) Sole Arbitrator directed Appellant to pay Respondent simple interest at the rate of 6% per annum on Rs. 603,202,083/- from 31 October 2011 to the date of the Award and simple interest at the rate of 6% per annum on all sums payable pursuant to the Award from the date of the Award to the date of payment; and CA 1547/19 7 (v) Respondent was liable to pay Rs. 98,452,322 in respect of the Earlier Arbitration. 18. Subsequent to the issuance of the Award, the Respondent filed COS No. 16/2017 before the Learned High Court at Lahore, and on 04.04.18, the suit was allowed and it was held that the Award shall be recognized and enforced as a judgment and decree of the court under Section 6 of the Foreign Awards (Recognition and Enforcement) of Foreign Arbitral Awards 2011 (the “Foreign Arbitration Act”). 19. Consequently, the Appellant filed ICA No. 210640/2018, impugning the judgment of the Learned Single Judge. The same was dismissed by the Learned Division Bench of the Learned High Court, at Lahore, inter alia, for the reasons: (i) High Court has exclusive jurisdiction to recognize and enforce foreign arbitral awards which means it has exclusive jurisdiction to recognize and enforce the Award; (ii) The dispute resolution mechanism under the GSA was applicable to the Payment Agreement and that the Sole Arbitrator was well within his jurisdiction to make determination in terms thereof; (iii) Public policy exception should not be used as a back door to review the merits of a foreign arbitral award or to create grounds which are not available under Article V of the Convention as this would negate the obligation to recognize and enforce foreign arbitral awards; and (iv) The Take or pay clauses in the GSA, being a common provision in commercial contracts, especially gas purchase agreements is valid and enforceable and cannot be considered as a penalty provision. The terms of the GSA were negotiated and agreed to between the parties. CA 1547/19 8 The Appellant has subsequently appealed to this Court, wherein, leave to appeal was granted on 12.09.19 to consider the points raised by both the Parties in this case. II. Arguments of the Parties 20. Counsel for the Appellant argues that pursuant to the laws of Pakistan, there must be a specific arbitration clause in the Payment Agreement in order for the matter to be referred to arbitration. The first claim in the arbitration, with respect to non- payment of Rs. 104,133,296/- was under the Payment Agreement, which did not contain an arbitration clause and by virtue of accepting the claim, the sole arbitrator exceeded its jurisdiction. Learned counsel for the Appellant further argued that since the Payment Agreement did not contain a valid arbitration agreement, this was against Article V(1)(a) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (the “New York Convention”) which has been incorporated into the law of Pakistan via its implementing statute, the ‘Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Act 2011 (the “Foreign Arbitration Act”).Appellant also argued that the Payment Agreement does not make any express or specific reference to the arbitration clause in the GSA. 21. Learned counsel for the Respondent counters the argument of Appellant by relying on Clause 18.3 of the GSA that provided for all matters ‘arising out of or in connection with the GSA to be referred to arbitration’. He contends that it cannot plausibly be argued that amounts due under the Payment Agreement are not “arising out of or in connection with” the GSA. The Respondent further submits that this is a question of contractual interpretation (i.e. interpretation of the scope of the arbitration agreement in the GSA), absent a completely perverse finding by the sole arbitrator and the division bench, this Hon’ble Court ought not interfere in CA 1547/19 9 these findings and that the findings of the two fora gave effect sensibly to the commercial terms agreed in the GSA and are therefore, subject to arbitration. 22. The Appellant maintains that the Impugned Judgment has wrongfully held that Section 74 of the Contract Act is not attracted in the “so called” take or pay clauses, set out in Section 3.6(a) of the GSA. Appellant argues that its conduct of not taking the Gas during the relevant period amounted to a breach under section 3.6(a). The Appellant further holds that non- performance of the take or pay provisions would amount to breach under the laws of Pakistan, consequently this would be a situation governed by section 74 of the Contract Act, and that the Take or Pay provisions cannot be allowed to operate outside the sphere of the laws of Pakistan. 23. Counsel for Appellant also holds that the Award rendered by the sole arbitrator was patently illegal since it was contrary to Section 74 of the Contract Act, 1872 (the “Contract Act”), which essentially states that a party should not be allowed to recover more than it has actually suffered. Appellant alleges that the Respondent had not suffered an actual loss of more than Rs. 356,104,346.25/- and that by awarding more than the actual loss suffered amounts to unjust enrichment/double recovery since the amount of Gas not taken by the Appellant was sold to third parties, unjustly enriching the Respondent. The protection against unjust enrichment, according to the Petitioner, is a fundamental aspect of the public policy of Pakistan and Section 6 of the Foreign Arbitration Act read with Article V(2)(b) of the New York Convention. 24. Respondent counters that the judgment of Learned High Court has made sound formulation on public policy, and that under the New York Convention, public policy should be construed narrowly CA 1547/19 10 and should only be used as a ground to refuse enforcement where the award is on the face of it in clear violation of fundamental notions of morality or justice of the enforcing State. Respondent further contends that the Appellant’s disagreement is not with public policy but rather with the quantum of the award. 25. The above arguments of the learned counsel for the Parties have been considered with due care and attention, and the available record has been perused at length. Owing to the various issues that arise in this case, each will be dealt separately. III. Issue No 1: Incorporation of arbitration clause from the Main Contract 26. In today’s commercial reality, it is not unusual for parties to have a network of inter-connected, inter-dependent, or multi-contracts, which form an “indivisible whole contract”. Therefore, when disputes arise, a party who intends to initiate arbitration will potentially wish to do so under several of these inter-connected, inter-dependent or multi-contracts connected inter-se. 27. Bernard Hanotiau, one of the revered authorities on arbitration, in his book titled ‘Complex Arbitrations: Multi-party, Multi-contract, Multi-issue – A comparative Study’ aptly explains that “in a situation involving a series of agreements between the same parties, the main problem is determining whether these contracts constitute an indivisible whole (ensemble contractuel unique). The solution will rest on an interpretation of the will of the parties.’.”17 17 'Chapter 3: The Possibility of Bringing Together in One Single Proceeding all the Parties Who Have Participated in the Performance of One Economic Transaction Through Interrelated Contracts', in Bernard Hanotiau, Complex Arbitrations: Multi-party, Multi-contract, Multi-issue – A comparative Study (Second Edition), International Arbitration Law Library, Volume 14 Kluwer Law International 2020) pp. 197 - 310 CA 1547/19 11 28. The main consideration for the instant case, therefore, is whether the GSA and the Payment Agreement are comprised of inter- connected or inter-dependent contracts to be treated as “indivisible whole contract” or whether they are separate and independent from each other. 29. The Learned bench of the High Court has rightfully concluded that the terms of the Payment Agreement establish that the parties intended to remain within the confines of the GSA as the purpose of the Payment Agreement was to give effect to the Expert's Determination.18 The Expert Determination itself was a result of a dispute arising out of the obligations of the GSA. 30. Furthermore, the intention of the Parties to give effect to the obligations under GSA is evident by the Recitals to the Payment Agreement, which make explicit mention of the GSA and the dispute arising under it. Moreover, Clause 1 of the Payment Agreement states explicitly that the definitions set forth in the GSA will carry the same meanings under the Payment Agreement, and Clause 4 states that after resolution of the issues under the Payment Agreement, the provisions of the GSA shall apply and prevail. Therefore, this is illustrative of the intention of the parties to, not only be bound by the GSA, but also to remain within its confines. This continuous reference to the GSA means that the Payment Agreement was ultimately guided by, and dependant on the GSA for its existence. It was, undoubtedly in our minds, a “part of an indivisible whole” and the transaction thus must be looked at in its entirety. 31. Philippe Leboulanger, another revered authority on international commercial arbitration, urges us to take into account the commercial realities of the operation: 18 Paragraph 17 of the impugned judgement CA 1547/19 12 “It is important to take into account the commercial reality of the operation, because sometimes the parties’ reciprocal synallagmatic19 obligations arise not from a single contract, but from different contracts. It should be checked whether the obligations undertaken under the different agreements are reciprocal, having a common origin, identical sources and an operational unit. When the agreements make up one single business transaction, the interplay between the undertaking cannot be ignored, as there exists within the contractual context a kind of freedom of circulation of obligations and interrelated debts. Whenever obligations were undertaken for the accomplishment of a single goal and are economically interdependent, the different disputes should be appreciated on an overall basis. Agreements may be considered to be interrelated when they were concluded on the same date, for the same duration, for the same purpose. Another indication of the interrelation between contracts is the presence of a general—or a master, a cover, a basic or a head— agreement outlining the obligations undertaken by the parties, obligations which are usually discussed in more detail in the ancillary agreements. General agreements often contain a preamble describing the transaction and the interrelation between the different agreements. In this case, the interdependence between a general agreement and its ancillary agreements is evident, especially when the general agreement expressly refers to each one of the ancillary agreements and each one of the ancillary agreements expressly refers to the general agreement and to the other ancillary agreements. Interrelation also exists in the context of framework and application agreements.”20 32. It is therefore, certain that the obligations undertaken under the Payment Agreement were for the accomplishment of a single goal i.e. the fulfillment of the terms of the GSA, both the contracts were economically interdependent and had a common origin. 19Synallagmatic Contractin civil law. A bilateral or reciprocal contract, in which the parties expressly enter into mutual engagements, each binding himself to the other. Poth.Obl. no. 9. Such are the contracts of sale, hiring, etc. See State ex rel. Waterman v. J. S. Waterman and Co., 178 La. 340, 151 So. 422, 426. Black law Dictionary 4th Edition) 20 Philippe Leboulanger 'Multi-Contract Arbitration' (1996) 13 (4) J In't Arb 43, 47 CA 1547/19 13 33. The Appellant further argues that the arbitration clause in the GSA did not cover the Payment Agreement, and thus the Sole Arbitrator exceeded his jurisdiction by deciding the issues arising out of the Payment Agreement. The arbitration clause in Clause 18.3 in the GSA covers disputes, disagreements or default of the seller and buyer “in connection with or arising out of” this Agreement. The dispute under the Payment Agreement was inarguably a dispute connected to the GSA, and also arose out of the obligations under the GSA. 34. Furthermore, we are guided by the following case law and authorities on this matter.In the case of Fiona Trust& Holding Corporation v. Privalov,21 the U.K House of Lords, held that the proper approach is for courts to give effect to the commercial purpose of the arbitration clause and that parties, as rational businessmen, were likely to have their disputes arising out of their relationship by the same forum i.e. the arbitral tribunal in this case wherein it is stated that: “7…parties, as rational businessmen, were likely to have intended that only some of the questions arising out of their relationship were to be submitted to arbitration and others were to be decided by national courts. Could they have intended that the question of whether the contract was repudiated should be decided by arbitration but the question of whether it was induced by misrepresentation should be decided by a court? If, as appears to be generally accepted, there is no rational basis upon which businessmen would be likely to wish to have questions of the validity or enforceability of the contract decided by one tribunal and questions about its performance decided by another, one would need to find very clear language before deciding that they must have had such an intention. 8. A proper approach to construction therefore requires the court to give effect, so far as the language used by the parties will permit, to the commercial purpose of the arbitration clause...” 21 [2007] UKHL 40 CA 1547/19 14 35. Since the decision rendered in Fiona Trust (supra) several cases have since been decided, fine tuning the rationale laid down therein, and courts have considered whether the presumption also applies in a multi-contract scenario, where contracts contain different, potentially inconsistent arbitration agreements. In some of the cases, the presumption has been applied to discover the real intention of the parties, insomuch as that the arbitration clause in one agreement also envisages a dispute under another agreement. Recently, an English Court in multi-contract conflicts expanded the “centre of gravity” approach, and held that a carefully and commercially minded construction of the agreement at hand is required, and the Court of Appeal in the case of AmTrust Europe Ltd v Trust Risk Group SpA 22, further examined which of the inter-related or inter-dependent contracts was the “centre of gravity” of the dispute, based on which the dispute resolution provisions of the “centre of gravity” contract will govern the resolution of the inter-related or inter-dependent contracts. 36. In a case decided by the French Supreme Court on 14 May 1996,23 an exclusive distribution agreement had been concluded by two companies and contained an arbitration clause providing that any dispute resulting from the agreement or its termination, or relating thereto, would be decided through arbitration. A dispute had arisen, and the parties had concluded an additional agreement providing for the payment of commissions to the distributor for sales performed outside the scope of the distribution agreement. This second agreement did not contain any arbitration or jurisdiction clause. A dispute arose under the second agreement and the distributor started an action before the Commerce Court of Bobigny. The lower court upheld its 22 [2015] EWCA Civ 437 23 1st Civ. Chamber, 14 May 1996, 1997 Rev. Arb. 535. CA 1547/19 15 jurisdiction considering that the second agreement was not an accessory of the first one since the two agreements concerned different types of transactions and the absence of any explicit reference to the arbitration clause in the second agreement excluded any acceptance of the said clause in the context of this second agreement. The French Supreme Court reversed the finding, deciding that the second agreement was based on a breach of the first agreement and was thus its complement, with the consequence that it fell within the scope of the arbitration clause contained in the first contract. 37. In another case by the French Supreme Court decided on 5 March 1991,24 the dispute arose from a share transfer agreement concluded between A and B and containing a guarantee in favour of the purchaser. It contained an arbitration clause. Two months later, another agreement was concluded by the same parties to the effect that after the establishment of a final accounting, the debt of the Seller amounted to a certain sum. This second agreement did not contain any arbitration clause. A dispute arose and the purchaser started an action before the French courts. The French Supreme Court considered that the second contract was only the implementation of the first, which both formed a whole and that therefore the force obligatoire (the binding force of the contract) of the arbitration clause included in one agreement extended to the other. 38. The same approach prevails in Singapore, in the case of Tjong Very Sumito and Ors v. Antig Investments Pte. Ltd; the Singapore Supreme Court,25 considered a Share Sale and Purchase Agreement (SPA), which contained a clause providing for disputes to be resolved by arbitration. The arbitration clause 24 Commercial Ch., 1992 Rev. Arb. 66 and note by L. Aynès 25 [2009] 4 S.L.R.(R) 732, [2009] S.G.C.A. 41 CA 1547/19 16 stated: “…any and all disputes, controversies and conflicts arising out of or in connection with this Agreement or its performance (including the validity of this Agreement) shall be settled by arbitration…” The same parties subsequently entered into four further Supplemental Agreements. Each Supplemental Agreement was considered supplemental to the SPA.A dispute arose as to whether a payment arrangement under the fourth Supplemental Agreement, (which did not contain an arbitration clause) was subject to the arbitration clause in the SPA. The Court of Appeal held that since the fourth Supplemental Agreement ‘owes its existence to the SPA, such Supplemental Agreement cannot stand independently on its own. Like the first three supplemental agreements, its purpose was to supplement and/or modify certain terms of the SPA’. The dispute therefore, arose in connection with the SPA. The Court concluded that the intention of the parties was manifest to be bound by the Arbitration Clause contained in the principal SPA and such clause extended to the fourth Supplemental Agreement, as well. 39. From the above discussion, and keeping in sight judicial consensus across globe, we decide as follows. In the instant case, both the Agreement i.e GSA and the Payment Agreement are by and between the same parties, therefore we are inclined to apply the liberal interpretation as expounded in the case of Fiona Trust case (supra). We have no hesitation in holding that the controversy arising out of Payment Agreement is a progeny of the GSA and cannot be divorced from the parent GSA. The arbitration clause contained in the GSA would therefore be the “centre of gravity” and would be deemed to be anchored in the Payment Agreement which itself was merely an implementation of the GSA. The disputes “arising out of” the GSA were thus wide enough to cover the Payment Agreement. We hold that it would neither be commercially sensible nor realistic to decide that both CA 1547/19 17 the Agreements were to be decided by separate forums. Had this been the case, the parties, as rational businessmen, would have been prudent in expressly excluding the arbitration clause from the Payment Agreement. We therefore, are inclined to uphold the reasoning and conclusion drawn by the Learned Bench of the High Court, and the Arbitral Tribunal. 40. Learned Counsel for the Appellant has relied upon the UK Supreme Court case of Dallah Real Estate and Tourism Holding v. Government of Pakistan26 in support of his contention that the award, cannot be sustained on the ground inter-alia; of Article V(1)(a) of the New York Convention. We have examined the cited case, which essentially revolved around the issue of non- signatories to the contract which is a common and recurring issue in international commercial arbitration. Certain others aspects were also explored in this case, more significantly the doctrine of Kompetenz-Kompetenz or competence competence. Kompetenz- Kompetenz, or competence-competence, is a jurisprudential doctrine whereby a legal body, such as a court or arbitral tribunal, may have competence, or jurisdiction, to rule as to the extent of its own competence on an issue before it. The concept arose in the Federal Constitutional Court of Germany. This principle, which is accepted by the general international law in the matter of arbitration, assumes particular force when the international tribunal is no longer an arbitral tribunal […] but is an institution which has been pre-established by an international instrument defining its jurisdiction and regulating its operation27. The principle was also considered by this Court in the case of Karachi Dock Labour Board v. M/s Quality Builders Ltd28, wherein it was observed that the arbitral tribunal is indeed a judge of both fact and law, the latter of which includes the question of its own 26 [2010] UKSC 57 27 (Nottebohm Case (Liech. v. Guat.), 1953 I.C.J. Reports 7, 119 (21 March) 28 PLD 2016 SC 121 CA 1547/19 18 jurisdiction29. In numerous cases in Pakistan, it has been held that there is no legal impediment in the way of the court or tribunal to decide its own jurisdiction30. The principle Kompetenz-Kompetenz was also recognized by Indian Supreme Court see SBP& Co. v. Patel Engineering Ltd31. (Seven-member bench), overturning its earlier judgment in Konkan Railway Corp. Ltd. v. Rani Construction (P) Ltd;32. This doctrine, therefore, essentially allows the arbitral tribunal to determine its own jurisdiction. 41. Under the facts and circumstances of this case and in accordance with the doctrine of competence competence, the Sole Arbitrator was well within his rights to determine his own jurisdiction, and the learned counsel for Appellant has not been able to demonstrate that the tribunal lacked jurisdiction, or that assuming jurisdiction as regard the Payment Agreement, exceeded his mandate under Article V(1)(c) of the New York Convention. 42. Furthermore, reliance of learned counsel on Article V(1)(a) of the New York Convention, is misplaced, relied Article allows refusal of recognition and enforcement of an award if: “(a) The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which parties have subjected it or, failing any indication thereon, under the law of the country where the award was made…” Thus, enforcement of an award under this Article may be refused if the arbitration agreement is invalid or if the parties lacked the capacity to arbitrate, which is not the position in the instant case. 29 Para. 14 Ibid. 30 See Government of Punjab v. Sanosh Sultan PLD 1995 SC 541 and Raunaq Ali v.Chief Settlement Commissioner PLD 1973 SC 236 318 SCC 618 = AIR 2006 SC 450Judgment is on the Section 11 (6) of the Arbitration and conciliation Act, 1996, which empowers the Chief Justice to appoint arbitrator in case of disagreement between the parties, such powers as against earlier judgment, is held to be judicial power. 32[2000] (8) SCC 15 CA 1547/19 19 43. Under the Commentary of the New York Convention by Herbert Kronke et al titled ‘Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention’, it has been stated that Article V(1)(a), permits a court to deny recognition and enforcement of an award if no arbitration agreement exists. We must however, be careful in noting that the issue here is not the existence of the arbitration agreement, but rather, whether the existing arbitration clause could have been read into another agreement i.e. the Payment clause. We are therefore unable to subscribe to the view of the learned counsel for the Appellant that the case is covered by Article V(1)(a). 44. More broadly on the issue of incorporation of an arbitration clause from one contract into another in international commercial arbitration, as a guideline for future cases in Pakistan, we find it necessary to dilate upon the trend followed across various jurisdictions: (i) UNITED KINGDOM: 45. One of the earliest adjudications regarding the incorporation by reference was the landmark case of TW Thomas & Co. Ltd v. Portsea Steamship Co Ltd.33While this was the initial view, the jurisprudence has significantly evolved and departed from the principles dilated in this case. The question arose as to whether an arbitration clause in the charter party, which was referred to, in the margin of the bill of lading had been incorporated into the bill of lading or not. The margin of the bill of lading was inked with the words “…all other terms and conditions and exceptions of charter to be as per charter party, including negligence clause.”The charter party itself provided “any dispute or claim arising out of any of the conditions of this charter shall… be settled by arbitration.” The House of Lords held that that the arbitration clause could not be 33 [1912] A.C 1 HL CA 1547/19 20 incorporated because firstly, if the parties are to be deprived of the ordinary legal remedies of approaching the court, the same should be done explicitly; secondly, requisite modifications may be required according to the parties; and thirdly, there is need for certainty in law. 46. The Court of Appeal case of Aughton Limited v MF Kent Services Ltd.34gave rise to differing view by the judges. Sir John Megaw, relied on the case of Thomas v. Portsea (supra) and reinforced the strict rule that maintained that specific words were necessary to incorporate an arbitration clause into a contract and that the reference in a sub-contract to another contract’s terms and conditions would not suffice to incorporate the arbitration clause into the sub-contract. 47. The reasoning, of the learned Judge, for imposing the requirements of specific words of incorporation, is based on three important factors; with respect to arbitration agreements. Firstly, that an arbitration agreement may preclude the parties from bringing a dispute before a court of law, which is not only a permissible, but also desirable way of settling disputes. Secondly, it was held that Section 7(1)(e) of the Arbitration Act 197935provide that an arbitration agreement, has to be a “written agreement”. The object and effect of which is to ensure that one is not deprived of their right to have a dispute decided by a court of law, unless he has “conspicuously and deliberately” agreed that it should be so. Thirdly, he emphasized on the peculiarity of arbitration clauses, as an arbitration clause, according to him, is a “self-contained contract”, for example, it is capable of having a different proper law from the main contract. 34 [1991] 57 B.L.R 1 35 As it was before the advent of the Arbitration Act, 1996 CA 1547/19 21 48. In the same case, Ralph Gibson L.J reached the conclusion that express words of incorporation were not always necessary. In some circumstances, general words would be sufficient to effect incorporation depending on the terms of the arbitration agreement. His preferred approach was to look at the precise words of the contract alleged to permit incorporation and to the precise terms of the arbitration agreement. If the terms of the arbitration clause are such that they only apply to the contract in which they appear, Ralph Gibson LJ’s view was that general words of incorporation would be insufficient, but if they apply to both, then general words of incorporation are sufficient. 49. The case of Habaş Sinai ve Tibbi Gazlar Isthisal Endustri A.Ş. v Sometal S.A.L.,36 expounded upon the approach taken by Justice Langleyin Sea Trade Maritime Corp. v. Hellenic Mutual War Risks Association (Bermuda),37 wherein, cases were divided into ‘single contract’ cases. Where parties sought to incorporate a set of standard terms or agreements, which contained an arbitration clause. And ‘two-contract’ cases, where parties incorporate a set of terms belonging to another contract. Habas, decided ‘one contract cases’ to be those cases, where both the contracts, were entered into by the same parties. The rest of the cases were classified as ‘two contract’ cases. In Habas case, there had been fourteen (14) previous contracts between the same parties. The issue in this case was whether general wording mentioned below were capable of incorporating an arbitration clause: “All disputes, or controversies, or differences, which may arise between the buyer and seller under this contract, shall be settled in London, according to London Arbitration Rules, by the United Kingdom Law.” 36 [2010] EWHC 29 (Comm) 37 [2006] 2 C.L.C 710 CA 1547/19 22 50. The final contract was prepared by an agent of one of the parties, and did not contain the London arbitration clause but provided that "All the rest will be same as our previous contracts". It was held that in principle, English law accepted incorporation of standard terms by the use of general words. The principle did not distinguish between a term which was an arbitration clause and one which addressed other issues. 51. A stricter rule was applied in charter party/bills of lading cases. In relation to two contract cases, where contracts where not entered into by the same parties, a more restrictive approach to incorporation was required. In such a case, it might not be evident that the parties intended to incorporate not only the substantive provisions of the other contract but also provisions, such as an arbitration clause, particularly if a degree of verbal manipulation was needed for the incorporated arbitration clause to work. Those considerations however, did not apply to a single- contract case, and the stricter rule was not to be extended to single-contract cases since that would involve the exception swallowing up the rule. In a single-contract case, the independent nature of the arbitration clause should not determine whether it was to be incorporated. General words of incorporation were capable of incorporating terms which included an arbitration clause without specifically referring to it and the question was whether in the instant case they did so. 52. Therefore, it was held that the words of incorporation in the last contract were apt to incorporate the London arbitration clause. Application of the arbitration clause did not require any linguistic manipulation. When the parties referred to "all the rest" being the same, there was no good reason to treat them as meaning all of the rest except the arbitration clause. CA 1547/19 23 53. It may, thus be seen, that the English approach to incorporation by reference has evolved from a strict approach into one with exceptions and carve-outs such as the “single contract” rule. (ii) Singapore: 54. Singapore advocates the “contextual approach” at present in order to promote arbitration and adopt a pro-arbitration regime, wherein the question of incorporation of an arbitration clause depends on the contractual interpretation of the agreement between the parties. 55. The Court of Appeal of Singapore passed the landmark judgment of International Research Corp v Lufthansa Systems Asia Pacific Pte Ltd;38 and discontinued the strict rule of interpretation that had been earlier borrowed from English Common Law. The court provided two primary reasons for distinguishing itself from the UK jurisprudence and its previous decisions. First, it held that ousting the jurisdiction of the court is no longer considered "odious", and therefore, there is no point in requiring such a high threshold of proof for establishing the intention to arbitrate; and, secondly, businessmen, cannot be expected to differentiate between arbitration clause and any other clause of the contract. 56. The said view of the Singapore Court of Appeal was further endorsed in R1 International Pte Ltd v Lonstroff,39 where the court affirmed the position that an arbitration clause can be incorporated into a contract even after its formation provided there was a prior understanding between the parties. (iii) Hong Kong: 38 [2012] SGHC 226 39 [2015] 1 S.L.R 521 CA 1547/19 24 57. Hong Kong also follows the contextual approach of incorporation i.e. there is no requirement of a specific reference to the arbitration clause for its incorporation if intention of the parties was to have arbitration as a dispute resolution mechanism. 58. In Astel Peiniger Joint Venture v. Argos Engineering,40 the Hong Kong High Court did away with the strict approach laid down in Thomas v. Portsea (supra), and explicitly stated that this rule is not applicable in Hong Kong. It further held that ultimately, courts must endeavor to give contractual and commercial effect to the actual words used by the parties. This was also endorsed in the case of Gay Constructions Pty v. Caledonian Techmore (Building) Ltd.41 (iv) India: 59. The general rule for incorporation by reference was laid down by the Indian Supreme Court in the case of Alimenta SA v. National Agriculture Co-op Marketing Federation of India.42 The Indian Supreme Court held that it is now well established that the arbitration clause of an earlier contract can be incorporated into a later contract by reference; provided it is not repugnant to or inconsistent with the terms of the contract in which it is incorporated.43 In this case, the contract was for the sale and supply of HPS groundnut kernel Jaras. After the usual terms as to quality, quantity, price, etc., the contract provided in clause 11 that ‘other terms and conditions are per FOSFA-20 contract terms.’ The question therefore, was whether the arbitration clause in FOSFA-20 contract, was incorporated by reference, in the contract for sale and supply of HPS groundnut kernels. The Supreme Court held that the arbitration clause in FOFSA-20 contract was incorporated by reference into the contract for sale and supply of 40 [1994] 3 HKC 328 41 [1995] 2 HKLR 35 42 (1987) 1 SCC 615 43 Ibid at Paragraph 7 CA 1547/19 25 HPS groundnut kernel jaras. This judgment established an important principle of the doctrine of incorporation, i.e. incorporation can be considered valid only when it is “consistent, sensible and intelligible” with the terms of the contract in which it is incorporated. In doing so, the Indian Supreme Court endorsed the approach laid down by a full bench of the Calcutta High Court in Dwarkadas & Co. v Daluram Gaganmull44. A very fine distinction between the phraseology of the provision incorporating the arbitral clause was drawn and accepted.45 60. The next significant case that asses the proposition if an arbitration clause can be incorporated by reference into subsequent contracts; is that of Atlas Export Industries v. Kotak Company46 which followed the approach laid down in the case Alimenta S.A (supra). 61. The Indian Supreme Court in the case of M.R. Engineers & Contractors (P) Ltd v Som Datt Builders Ltd.47 provided a list of guidelines with respect to section 7(5)48 of the Indian Arbitration and Conciliation Act, 1996 that are to be followed when dealing with incorporation by reference: 1) the contract should contain a clear reference to the documents containing arbitration clause; 2) the reference to the other document should clearly indicate an intention to incorporate the arbitration clause into the contract; and 3) the arbitration clause should be appropriate, that is, capable of application in respect of disputes under the contract and should not be repugnant to any term of the contract.49 44 AIR 1951 Cal 10 45 Ibid at Paragraph 9 and 10 46 (1999) 7 SCC 61 47 (2009) 7 SCC 696 48 “The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.” Pakistan does not have an analogous provision. 49 Ibid at Paragraph 13 CA 1547/19 26 62. The apex court also clarified that only a specific reference from the referred document in the contract between the parties should have the effect of incorporating the arbitration clause. There is a requirement of a "conscious" acceptance of the parties before incorporation can take place. However, where the contract provides that the standard form of terms and conditions of an independent trade or professional institution should be incorporated, a general reference to the referred document would suffice. 63. Therefore, it would appear that when it comes to standard form of contracts, the Indian Court is eager to take a more relaxed view of interpretation, however, where standard form of contracts are not concerned, a requirement of intention of the parties to incorporate the arbitration clause into the contract is needed. (v) Pakistan: 64. Under the current regime in Pakistan, the case of Messrs MacDonald Layton v. Associated Electrical Enterprises50 held that parties can incorporate an arbitration clause from another agreement in their own agreement provided it is so mentioned expressly. Further, it was decided that “a mere reference that the terms and conditions of a certain agreement will apply to the agreement between the parties will not import the arbitration clause into the agreement. A reference to the arbitration clause should be specific so that there may not be any ambiguity and the intention of the parties be made clear.” (vi) Conclusion: 65. An analysis, and surveillance from various jurisdictions, as discussed above, seems to indicate that the adoption of the United 50 PLD 1982 Karachi 786 CA 1547/19 27 Nations Commission on International Trade Law on International Commercial Arbitration (the “UNCITRAL Model Law”) has a bearing on application of the approach taken by the courts on incorporation of an arbitration clause by reference. The UNCITRAL Model Law is designed to assist the States in reforming and modernizing their laws on International Commercial Arbitration and to develop a pro-arbitration regime in their national regime. It covers all stages of the arbitral process from the arbitration agreement, the composition and jurisdiction of the arbitral tribunal and the extent of court intervention through to the recognition and enforcement of the arbitral award. It reflects worldwide consensus on key aspects of international arbitration practice having been accepted by States of all regions and the different legal or economic systems of the world. 66. For the purposes of incorporation of the arbitration clause by reference, a noteworthy aspect of the UNCITRAL Model Law is Article 7, which relates to arbitration agreements. More specifically, Article 7(2) of the Model Law, states that: “the reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and the reference is such as to make that clause part of the contract.” 67. Thus, the UNCITRAL Model Law, in furtherance of its pro- arbitration aims, has explicitly allowed for incorporation by reference. Legislation based on the Model Law has been adopted in 85 States in a total of 118 jurisdictions51 including United Kingdom, Singapore, Hong Kong, and India have all incorporated provisions of the UNCITRAL Model Law into their national laws, and have therefore, incorporated Article 7 into their Acts. 51 https://uncitral.un.org/en/texts/arbitration/modellaw/commercial_arbitration/status CA 1547/19 28 68. Indeed, Section 6(2) of the English Arbitration Act, 1996, Section 7(5) of the Indian Arbitration Act, 1996, Article 19(6) of the Arbitration Ordinance No. 17 of 2010, the National Arbitration Act for Hong Kong, and Section 4(7) of the Singapore Arbitration Act, 2001 all state that the reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement, if the contract is in writing and the "reference is such as to make that arbitration clause part of the contract". 69. Pakistan is a contracting State to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). Pakistan became a signatory to the Convention on 30 December 1958 and ratified it on 14 July 2005. It was first implemented through the Recognition and Enforcement (Arbitration Agreements and Foreign Arbitral Awards) Ordinance 2005. The Ordinance, being temporary in nature, was occasionally re- promulgated until 2011 when the Recognition and Enforcement(Arbitration Agreements and Foreign Arbitral Awards) Act 2011 was passed by Parliament. Pakistan is also a party to the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 1965 (ICSID Convention), the Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 (the Geneva Treaties). However, the Geneva Treaties do not apply to arbitration agreements and awards to which the New York Convention applies. 70. In a commercially fast paced world, where the world is essentially a global village, it is regrettable that Pakistan, although a signatory to UNCITRAL, has till date not incorporated the provisions of the Model Law into its domestic law and the Foreign Arbitration Act makes no mention of incorporation by reference. CA 1547/19 29 IV. ISSUE NO. 2: WHETHER A BREACH OF SECTION 74 HAS OCCURRED? 71. We note that barring the Impugned Judgment, Take or Pay clauses and their significance have not been adjudicated upon by this Court. We therefore, deem it pertinent to dispel any misconceptions regarding such clauses. 72. Briefly, Take or Pay provisions are a very familiar feature in gas and liquefied natural gas (LNG) sales contracts, power purchase contracts and many other common energy industry contracts, and provide an option for the buyer to take supply of gas, LNG or power, or to pay for it even if it does not take the commodity. The reasoning provided by Paula Hodges QC and James Rogers in an article titled ‘Take or pay clause tested in English Courts’52 illustrate the need for such clauses: “The significant financial commitment required for exploration, production, shipping and distribution facilities leads participating companies to seek a measure of security as regards the level of supply and demand throughout the duration of any supply arrangements so as to guarantee future returns on their investment. Take or pay clauses have therefore developed to the benefit of both purchasers and suppliers. The supplier is guaranteed a regular income stream, while the purchaser commits to pay for a minimum quantity to guarantee a regular but flexible supply. In the event that the purchaser is not able or willing to take the agreed minimum amount, it is nonetheless required to pay for it. Take or pay clauses usually operate to the benefit of both purchaser and supplier. The purchaser is given the flexibility to vary his order quantity throughout the life of the contract, subject to the minimum quantities and the supplier has some certainty of income in relation to the sale of the product. There is therefore a commercial justification for including such a provision in a supply contract. Moreover, in the energy sector at least, such provisions will typically be 52 I.E.L.R. 2008, 3, 60-62 CA 1547/19 30 negotiated by sophisticated, commercially experienced parties with comparable bargaining power.” 73. Take or Pay clauses are also widely utilized in the petroleum industry in Pakistan. Therefore, it can be seen that Take or Pay clauses are a common occurrence in energy contracts, and their significance in maintaining a regular income stream for the seller and a regular supply stream for the buyer is paramount. 74. There are two separate obligations in most take or pay contracts. First, there is the obligation on the seller to make the gas available to the Buyer. Secondly, there is the obligation on the Buyer to pay for the gas that has been made available (either as well as, or instead of, taking up the gas).53 Furthermore, take or pay payments have been widely understood to be an amount due to the seller or transportation company as a debt for having made the gas or transportation services available, and not as damages for failure on the other party to take gas. The rule of penalties in this case is not held to apply generally, because the seller or the transportation company is providing the service of making gas or transportation services available to the other party, in accordance with the Gas Sale/Supply Agreement or the Gas Transportation Agreement which creates a debt owing to the seller or the transportation company for that service.54 75. In the House of Lords case of Amoco v. Teeside Gas,55 the issue was not whether the send or pay agreements (similar to take or pay agreements) were damages or a debt, Lord Hoffman refereed to send or pay agreements as an “income stream”. This was held to be a clear reference that this “income stream” would create a debt in favour of the gas transporter, should the shipper avail the 53 B. Holland ‘Enforceability of take-or-pay provisions in English law contracts-resolved’ 2016 Journal of Energy & Natural Law Resources 54 Ibid 55 [2001] 1 All ER (Comm) 865 CA 1547/19 31 service. In the same vein, an “income stream” would be created for the Seller of the gas, as a debt in its favour for supplying the gas to the Buyer. 76. Similarly, in the case of Associated British Ports v. Ferryways and Another,56 it was held, in relation to a send or pay clause at paragraph 50 that the obligation to pay was held not to be “…a secondary obligation that is triggered by a breach…but is itself a primary obligation given in exchange for ABP’s promise to provide a new linkspan, and as such cannot be a penalty.” 77. Therefore, it followed that payment under take or pay clause will be a debt, and the law on penalties ought not apply. This settled position was challenged in the case of M & J Polymers Ltd v. Imerys Minerals Ltd;57 wherein the Commercial Court considered the application of the rule of penalties in the context of take or pay provisions in a commercial contract. This case famously held the claim under the take and pay provisions was a debt. However, Burton J also held that as a matter of principle, take or pay clauses may operate as a penalty, but this would not be their ordinary classification, and would apply where “a sum is specified which is found not to be a "genuine pre-estimate of damage" or a sum is stipulated as "in terrorem" of the offending party”. In this case, however, Burton J upheld the take or pay clause on the basis: “On the facts of this case, I am entirely satisfied that the take or pay clause was commercially justifiable, did not amount to oppression, was negotiated and freely entered into between parties of comparable bargaining power, and did not have the predominant purpose of deterring a breach of contract nor amount to a provision "in terrorem". The evidence was wholly clear. The negotiations took place between extremely well qualified, able and savvy commercial men against 56 [2008] EWHC 1265 (Comm) 57 [2008] EWHC 344 (Comm) CA 1547/19 32 a very significant commercial background, including a background of previous dealings.“ 78. A middle course was navigated in the UK Supreme Court case of Cavendish Square Holdings BV v. Talal El Makdessi58 which held that: “13… There is a fundamental difference between a jurisdiction to review the fairness of a contractual obligation and a jurisdiction to regulate the remedy for its breach. Leaving aside challenges going to the reality of consent, such as those based on fraud, duress or undue influence, the courts do not review the fairness of men’s bargains either at law or in equity. The penalty rule regulates only the remedies available for breach of a party’s primary obligations, not the primary obligations themselves. 14…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty; but if the contract does not impose (expressly or impliedly) an obligation to perform the act, but simply provides that, if one party does not perform, he will pay the other party a specified sum, the obligation to pay the specified sum is a conditional primary obligation and cannot be a penalty.” This approach illustrates that a take or pay payment should be viewed as being due on the performance of the seller’s “specified obligation” in making gas available. There will not be any parallel breach by the buyer’s failure to take gas as the buyer will have an option to take gas. 79. In the present case, Learned Counsel for Appellant has argued that the fact that the Appellant did not take up the Gas during the specified time, amounted to a breach of the Take or Pay provisions, thereby rendering Section 74 of the Contract Act applicable to the case. It was further argued that its conduct of not taking the Gas during the relevant period amounted to a 58 [2015] UKSC 67 CA 1547/19 33 breach under Clause 3.6(a) of the GSA, which imposed an obligation on the Appellant to take the Daily Contract Quantity of Gas from the Respondent from and after the Commercial Operations Date during the Firm Delivery Period. 80. Section 74 of the Contract Act reads: “74. Compensation for breach of contract where penalty stipulated for.- When a contract has been broken, if a sum is named in the contract as the amount to be paid in stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or as the case may be, the penalty stipulated for.” 81. Retired Chief Justice Tassaduq Hussain Jillani, one of the Experts in the arbitration proceedings, at page 30 of his Opinion, lays down when the above provision of law would be attracted: (i) Firstly, when a contract has been broken; (ii) Secondly, if a sum is named in the contract in the case of breach, or (iii) Thirdly, if the contract contains any other stipulation by way of penalty; (iv) Fourthly, the party complaining of the breach would be entitled, whether or not actual damage has been proved to have been caused thereby, to receive from the party who has broken the contract, reasonable compensation not exceeding the amount so named or as the case may be, the penalty stipulated for. 82. The first condition for an invocation of Section 74, therefore, is breach of Contract. Learned Counsel for the Appellant argues that, by not taking up the Make-Up Gas, there had been a breach of Clause 3.6(a) of the GSA (the “Take or Pay” payment) on part of the Petitioner. Counsel for Appellant states that this is attributed to the wording of the Section, which, by use of the word “shall”, CA 1547/19 34 imposes an obligation on the Appellant to take up the minimum quantity of gas; and the latter part of the section which states “…if not taken pay for a minimum quantity of Gas…” was a provision providing for damages as a consequence of the breach of the Appellant’s obligation. This Section is reproduced below for ease of reference: “Section 3.6: Take or Pay/Make-Up Gas 3.6(a): From and after the Commercial Operations Date and during a Month in the Firm Delivery Period, the Buyer shall take and if not taken pay for a minimum quantity of gas (the “Take or Pay Quantity”) equal to fifty percent (50%) of the Daily Contract Quantity multiplied by the difference between the number of days in that Month (or portion thereof) and (i) the number of days (or fractions thereof) of Force Majeure Events declared by the Seller or the Buyer in that month, (ii) the number of days (or fractions thereof) of non-delivery of Gas by the Seller in that Month for any reason, including a breach or default by the Seller or maintenance undertaken by the Seller pursuant to Section 12.1, and (iii) the number of days of Scheduled Outages in that Month notified to the Seller pursuant to Section 12.2.” (Emphasis supplied) 83. The case of Muhammad Saleh v. Tim Chief Settlement Commissioner59 is clear authority on whether or not the word “shall” is always to be construed so as to create a compulsive obligation; this case laid down that the words “may” and “shall” in legal phraseology are interchangeable, depending on the context in which they are used, and are not to be interpreted with the rigidity which is attributed to them in ordinary parlance. 84. Furthermore, this case stressed upon the need for a contextual analysis of provisions. Upon our analysis, we find the Appellant’s approach of dividing Section 3.6(a) of the GSA into two different parts redundant. The provision, if looked at in its 59 1972 PLD SC 326 CA 1547/19 35 entirety, creates an obligation not to take up Gas, but rather, to pay for it even if it is not taken up. The Take or Pay payment is not due as a result of a contract breach or default, but rather, it flows from the Appellant’s valid choice/decision not to take the take or pay quantity. The take or pay payment under Section 3.6 is therefore essentially an agreement whereby the Appellant agrees to either take and pay the contract price for, a minimum contract quantity of Gas; or pay the applicable contract price for such Take or Pay Quantity if it is not taken. Thus, the Appellant’s obligation may be described as being in the “alternative” as it can be satisfied in either of the two ways. Therefore, even if the Appellant did not take up the Gas, but did pay for it, there would be no breach of contract. No penalty was attracted as a result of the Appellant not taking up the Gas, rather, conversely, under Section 3.6(c) of the GSA, the Appellant was allowed to ‘make up’ for the amount he had paid for. Thus, we are unable to agree with the contention of the Appellant that failure to take up the Gas had resulted in breach of contract. Section 3.6(c) of the GSA is reproduced as follows: “Section 3.6(c): Except for the Gas taken or paid by the Buyer pursuant to Section 3.6(b) above, any Gas paid for by the Buyer pursuant to this Section 3.6(a) above during a Contract Year but not taken prior to the time of payment (“Make-Up Gas”) may be taken with payment by the Buyer of the difference between the Gas Price prevailing at the time the Make-Up Gas is taken by the Buyer and the Gas Price used to determine the payment for the Take or Pay Quantity, using the “first in, first out” method and any increase in taxes on the sale and purchase of Gas applicable to Gas sales hereunder, during the Firm Delivery Period of the immediately following one (1) Contract Year of the Term, provided that the Buyer shall have first taken and paid for a quantity equal to but not less than the Take or Pay Quantity in the applicable Contract Year and provided further that in no event shall the Seller’s obligation to deliver the Gas hereunder on any Day exceed the Daily Contract Quantity. At the end of the Gas Allocation, the Buyer shall be entitled to the CA 1547/19 36 Make-Up Gas during the immediately following twelve (12) Months on as-available basis.” (Emphasis supplied) 85. Furthermore, even though it is clear that Section 74 of the Contract Act would not be attracted because there is no breach of contract that triggers the application of this Section, even if it were to have applied to the circumstances of the case, the Appellant would not have been able to make out an arguable case. This is because as per Section 74, the Respondent would be entitled to “reasonable compensation”. In the case of Syed Sibte Raza v. Habib Bank Limited,60 it was held that in working out the amount for reasonable compensation, it would be relevant to consider whether any loss has or has not accrued to the party, which has suffered on account of the breach, and the extent of that loss. As per the facts of this case, the fact that the Respondent Bank had spent more than the amount of security it withheld from its now departed employees on their training, therefore the amount of security deposit forfeited by the Bank was not held to be unconscionable or excessive. 86. Relating back to the case at hand, we note that the Take or Pay clause in the GSA was a reasonable pre-estimate for the loss suffered by the Respondent. This is because if the Take or Pay Quantity was not taken up by the Petitioner, the Respondent suffered losses insomuch as the fact that the Gas not taken by the Appellant is provided to the domestic consumers through its Distribution System. As a result, the Respondent suffered significant loss because domestic consumers enjoy a lower tariff as per the Regulations of the Oil and Gas Regulatory Authority (OGRA). It is a matter of record that when the GSA was executed the IPP tariff was Rs. 264.87 per MMBTU, while the tariff for 60 PLD 1971 SC 743 CA 1547/19 37 domestic consumers consuming up to 500M3 per month was Rs. 85.03, and for domestic consumers consuming between 50M3 per month, the tariff was Rs. 162.07. Moreover, Appellant’s obligation under Section 3.6 may be regarded as a reasonable pre-estimate of damages and not a penalty inserted in the contract for the reason that the Appellant is not burdened with the task of paying for the whole quantity of Gas which was to be taken, but rather 50% of the daily contract quantity after the Commercial Operations Date and 15% of the daily contract quantity during the Commissioning Period. Secondly, if the Appellant did not take/buy gas during the stipulated period, it was given a chance to make up the said quantity of gas not taken, during a specific period mentioned in the GSA i.e. during the Firm Delivery Period of immediately following one (1) Contract Year of the term. This appears to be a reasonable term stipulated in the contract, which has been evidently agreed upon by both parties prior to the signing of the GSA. The Appellant cannot now turn around and claim otherwise. V. ISSUE NO. 3: WHETHER AWARD RENDERED BY THE ARBITRATOR AMOUNTED TO UNJUST ENRICHMENT? 87. The Appellant vehemently asserts that a party should not be allowed to recover more than it has actually lost; as enshrined in Section 74 of the Contract Act, 1872 and that allowing more than the actual loss amounts to unjust enrichment/double recovery. Counsel for the Appellant further contends that Respondent admitted that it had not suffered an actual loss of more than Rs. 356,104,346.25/-, and the Sole Arbitrator, by awarding more than the actual loss suffered unjustly enriched the Respondent. The Appellant has stressed upon the fact that for a loss of Rs. 365 million rupees, the Respondent has been awarded Rs. 603 million, which plainly exceeds reasonable compensation for the losses suffered by the Respondent. CA 1547/19 38 88. The Appellant, in furtherance of his claim, relies on the Witness Statement of the Chief Billing Officer of the Respondent, who, according to the Petitioner, has admitted that the Respondent only suffered an actual loss of Rs. 356,104,346.25/- as a result of the Appellant’s inability to take the Gas. Upon perusal of the said document, we are unable to find such an admission on part of the Chief Billing Officer regarding the amount. Rather, conversely, the Chief Billing Officer explicitly states, at paragraph 4, that the total principal amount payable is Rs. 603,202,083.61 89. The Appellant, by its failure to pay for the six invoices issued by the Respondent from May to October 2011, was undeniably in breach of its obligation under the GSA. This invariably attracted Section 74 of the Contract Act, which was been discussed at length above. 90. We are guided by the case of Province of West Pakistan v Messers Mistri Patel & Co;62 wherein it was held that the award of compensation by the court under Section 74 of the Contract Act will depend upon a case by case factual and circumstantial analysis as to what would be reasonable compensation in each case subject to the limit of the amount mentioned in the contract. It is noteworthy that as per the facts of this case, the Government was entitled to forfeit five percent of the contract price in case of breach of contract by the other party. However, it so transpired that because the Government of Pakistan had earned a profit on sale of the remaining goods, the Court declined to award compensation of 5% of the total value of goods that had not been lifted by the supplier by the stipulate date. 61 Page 392 of the File 62 PLD 1969 SC 80 CA 1547/19 39 91. In the present case, we note that the alleged harshness awarded by the Sole Arbitrator has already been reduced to Rs. 400 million Rupees, with the agreement of both parties by the Court and to be deposited in court, while interpreting Section 74 of the Contract Act. 92. However, we find it necessary to dilate upon whether the Appellant’s claim for unjust enrichment holds the ground. For a claim of unjust enrichment to succeed, there are certain factors that ought to be taken into account. In the case of Fecto Belarus Tractor Ltd v. Government of Pakistan,63 the Supreme Court explained this doctrine as one in which a person gains a “windfall…in respect of an amount which is not owned by him nor it has sustained any loss in respect thereof”. 93. In more recent decisions, the Sindh High Court in the case of Arabian Sea Enterprises v. Abid Amin Bhatti,64 has held that the necessary ingredients for a claim of unjust enrichment to succeed are as follows: i. The plaintiff must prove that defendant has become enriched by the receipt of a benefit; ii. This enrichment is at the expense of plaintiff; iii. The enrichment and/or its retention is unjust; and iv. The defendant can legally be compelled to compensate the plaintiff. 94. The Lahore High Court in the case of Sui Northern Gas Pipelines v. DCIR65 explained unjust enrichment in the following terms: “Unjust enrichment occurs when a person retains money or benefits which in justice, equity and good conscience, belong to someone else… The doctrine of unjust enrichment, therefore, is that no person can be allowed to enrich inequitably at the 63 PLD 2005 SC 605 at 636 64 PLD 2013 Sindh 290 at paragraph 22 65 2014 PTD 1939 CA 1547/19 40 expense of another. A right of recovery under the doctrine of “unjust enrichment” arises where retention of a benefit is considered contrary to justice or against equity.” 95. The Canadian Supreme Court in the case of Garland v. Consumers’ Gas Co.66 that: “As a general matter, the test for unjust enrichment is well established in Canada. The cause of action has three elements: (1) an enrichment of the defendant; (2) a corresponding deprivation of the plaintiff; and (3) an absence of juristic reason for the enrichment.” 96. Upon analysis of the above cases, it must be seen that for a claim of unjust enrichment to succeed, there must be enrichment at the expense of the plaintiff and this enrichment must be unjust in such a way that there should be no lawful justification for the same. Relating back to the case at hand, learned counsel for the Appellant argues that the fact that the Respondent was entitled to recover the amounts for the same Gas twice, amounts to unjust enrichment of the Respondent, which is therefore contrary to the Contract Act, and also the principles of public policy. We cannot agree with this argument. While it may be so that the Respondent is receiving payment for the same amount of Gas twice, it needs to be clarified that this is upon failure of the Appellant to take up the Gas, and further, the Respondent, in any case, is not recovering the same amount, due to the fact that it is redirecting transmission to its domestic consumers, which pay a lower tariff than Independent Power Producers (IPP). Furthermore, to allow the Appellant’s claim would mean overlooking the fact that the Respondent is still under an obligation to supply the Make-Up Gas to the Appellant at any time within the duration stipulated under Section 3.6(c) of the GSA. There is, therefore, presence of ‘juristic reason’ for the enrichment. Further, the Appellant has failed to prove its deprivation as it is entitled to Make-Up Gas at a 66 [2004] 1 S.C.R. 629 at Paragraph 30 CA 1547/19 41 later date, which it failed to avail within the stipulated time frame. It is by now settled law that that if a party failed to avail a remedy within the period of limitation then after the expiry of the said period, the other party acquires a valuable right.67 Therefore, we hold that the Appellant has failed to make out a claim for unjust enrichment of the Respondent. 97. We are also fortified in our view by the reasoning of the Sole Arbitrator who very succinctly explained the factors to be taken into account when dismissing the claim for unjust enrichment: o Claimant expanded monies to construct the infrastructure to deliver Gas to the Respondent; o Claimant having to be ready and able to provide under the GSA, be it Daily Contract Quantity or the Take or Pay Quantity to the Respondent during Firm Delivery Period; o Claimant remaining liable to its upstream suppliers even if the Respondent chose not to take the Take or Pay Quantity but opted to pay instead and to Make Up Gas later; o Claimant having to bear the responsibility of cutting its losses and finding an alternative Buyer (even at a lower price) for the Gas not taken by the Respondent and the likely additional costs of transmission, distribution and unaccounted for gas. 98. Conclusively, we hold that the Appellant has failed to make out a claim for unjust enrichment, and we find that the award rendered by the Sole Arbitrator was not disproportionate to the losses suffered by the Respondent. VI. ISSUE NO 4: PUBLIC POLICY 99. Article V of the New York Convention lays down instances where courts may refuse recognition and enforcement of an arbitral award brought before them, more specifically, Article 67 (See Messrs Lanvin Traders Karachi v. Presiding Officer, Banking Court 2013 SCMR 1419) CA 1547/19 42 V(2)(b)states that recognition and enforcement may be refused if the award would be contrary to “public policy” of “that country”. Thus, since recognition and enforcement of the award is being sought in Pakistan, it is the public policy of Pakistan that one must adhere to while perusing the award, which, in turn requires a discussion on what amounts to a violation of public policy under the laws of Pakistan. 100. It is noteworthy that neither the New York Convention nor the corresponding Foreign Arbitral Awards Act has defined public policy. This was purposefully done by the drafters of the Convention so as to allow each country to derive its own notions of public policy, as it would be unrealistic and utopian to expect all States to adhere to one harmonized ideal of public policy. 101. The dilemma of defining public policy has adequately been by Albert Van Den Berg in his book titled ‘The New York Arbitration Convention of 1958. Towards a Uniform Judicial Interpretation’ wherein he states that the reason why the concept of public policy is so difficult to grasp is that the degree of fundamentality of moral conviction or policy is conceived differently for every case in the various States. Indeed, this is true, and to that effect both Parties have relied on a great many cases from different jurisdictions to illustrate the views taken by courts and commentators on the interpretation of public policy. 102. Owing to paucity of judicial commentary and literature alike in Pakistan, we find it necessary to expound upon the meaning of public policy, more specifically within the realm of international commercial arbitration. 103. Perusals of the Travaux préparatoires (preparatory works) of the New York Convention clearly indicate that the public policy exception was never meant to be given a wide scope of CA 1547/19 43 application. Article 1(2)(e) of the Geneva Convention, the predecessor to the New York Convention contained the provision of public policy in such a way that not only a violation of public policy of the country of enforcement hindered recognition and enforcement; an award could also be contrary to public policy if it was contrary to the “principles” of the law of the country in which it was seeking enforcement. The reference to principles of law was omitted by the International Court of Commerce (ICC) Draft of 1953, and Article IV(1)(a) of this draft was limited to only a violation of public policy. In the final discussions leading up to the adoption of the New York Convention, Working Party III was instated to present its report on 3 June, 1958. The wording “incompatible with the public policy of the country in which is award is sought to be relied upon” was recommended, the reasoning behind the same was that the public policy criterion should not be given a broad scope of application. The Convention adopted the draft of Working Party III, which now reads as Article V(2)(b) under the New York Convention. 104. Article V(2)(b)’s defense of public policy is one ground that is frequently invoked by a party resisting enforcement of the award, but rarely is it granted. We find that it would be remiss if we did not echo the Learned High Court in quoting the words of an English Court upon this issue, which are by now almost inextricably linked to this topic and oft cited: “public policy is a very unruly horse, and once you get astride it you never know where it will carry you. It may lead you from sound law. It is never argued at all, but when other points fail.” 105. Another frequently cited judicial comment on public policy is from Judge Joseph Smith in Parsons & Whittemore Overseas Inc. v. RAKTA,68 who observed that the public policy defense ought only 68 508 F.2d 969 (1974) CA 1547/19 44 to succeed where enforcement of the award would violate the forum State's most basic notions of morality and justice. 106. The recent Privy Council decision of Betamax Ltd (Appellant) v State Trading Corporation (Respondent) (Mauritius)69is of some guidance, in which, on appeal, the Privy Council overturned the decision of the Supreme Court of Mauritius which had set aside an award for being contrary to the public policy of Mauritius, because the underlying contract between the parties was in breach of the public procurement law of Mauritius. The Board held that the court was not entitled to use the guise of public policy to reopen issues relating to the meaning and effect of a contract or whether it complies with a regulatory or legislative scheme. For that reasons the decision of the Supreme Court of Mauritius setting aside the Award fell to be reversed. 107. In Pakistani jurisdiction, public policy has been interpreted in the context of the Act preceding the Foreign Arbitral Awards Act, 2011 i.e. the Arbitration (Protocol and Convention) Act 1937 in Nan Fung Textiles Limited v. Sadiq Traders Limited70 as being objects which are illegal by common law or legislation, which are injurious to good government which are adverse to justice, family life or public interest and objects economically against the public interest. 108. This court has also touched upon public policy in the case of Haji Abdul Karim and others v. Sh. Ali Muhammad as:71 “Similarly, the appellants not having proved that a license for the working of the factory was necessary because the Chief Executive Officer had formed the opinion that the running of the factory was dangerous to life, health or property or likely to create nuisance, it 69 [2021] UKPC 14 70 PLD 1982 Karachi 619 71 PLD 1959 SC 167 CA 1547/19 45 cannot be held that running of the factory was opposed to public policy.” 109. The Supreme Court of Azad & Jammu Kashmir in the case of Sardar Muhammad Yasin v. Raja Feroze Khan72 has defined public policy as: “…any act the allowing of which would be against the general interests of the community. This policy has involved itself with the growth of organised society. Certain standards in the domain of morality, used in its widest sense, have assumed sanctity on account of the acceptance by the general community. Therefore, any agreement which would destroy these standards or adversely effect [sic] the development of society or its organization have to be viewed from this angle and it is here that the principle of public policy is born.” 110. Therefore, it is easy to adduce the hesitance of courts and drafters alike in invoking public policy frivolously and without the most exceptional of circumstances. Most courts world over have favoured a restrictive approach to public policy in international commercial arbitration. It is imperative that, Pakistan is one of the countries that have yet to develop jurisprudence on international commercial arbitration, and we must be cautious, and ought to adopt standards of practice in line with the international community. There is also a need to develop best standing practices for our own courts, which are seeing a rise in cases pertaining to international commercial arbitration; therefore, there is an utmost need to deliver precedent that is consistent and does not open floodgates to frivolous litigation. Indeed, the very purpose of parties going to arbitration is the (relatively) speedy settlement of disputes, which ought not to be impeded by a party resorting to litigation once an award is rendered. 72 PLD 1972 AJ&K 46 CA 1547/19 46 111. The jurisdiction of courts under international commercial arbitration is merely supervisory; we deem it necessary to step in under circumstances, where, if not remedied, the arbitration award or agreement could lead to an unfair outcome for one of the parties. This is in no way means that domestic awards would be treated less favourably than foreign awards, but rather, the aim is to create a level playing field between the two and treat them at par. 112. A restrictive interpretation on challenge to enforcement of an award would therefore, ensure finality of award at its last stage, giving greater certainty to parties after having gone through rigorous arbitrations. The New York Convention itself advocates for a “pro-enforcement bias” and we are mindful of the same. 113. This does not in any way mean that the pro-enforcement bias impedes State interests however, and where a claim for violation of public policy is made, due care and attention ought to be awarded to that claim. However, one must be mindful that the public policy defense is an exceptional one at that, which demands heightened standards of proof that courts would normally require in order to refuse recognition and enforcement of a foreign arbitral award. Thus the Canadian courts have requested that the party opposing recognition and enforcement should present compelling evidence, and that recognition and enforcement should only be refused in instances of a “patently unreasonable award”.73 114. This heightened standard of proof is compatible with the exceptional nature of the public policy defense as well as with the fact that Article V (2)(b) ibid; provides a mere facility to the courts and not an obligation. 73 See Karaha Bodas Company, L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara and P.T. PLN (Persero) 2007 ABQB 616 CA 1547/19 47 115. Under the present scenario, we are convinced that this was not a case of unjust enrichment; rather, this was a case where the Appellant was aggrieved by the quantum of compensation awarded by the Sole Arbitrator. There had therefore, been no violation of public policy. 116. The German case of the Higher Regional Court of Frankfurt (Oberlandesgericht Frankfurt) in Oberlandesgericht [OLG] Frankfurt, Germany,74dismissed the argument of the Defendant that enforcement of the award would violate German public policy. It was held that even if the Defendant could prove that damages had been awarded arbitrarily by the Arbitral Tribunal, this would not amount to a violation of public policy. 117. Furthermore, in Oberlandesgericht [OLG] Celle, Germany,75 the Higher Regional Court of Celle also dismissed a claim of public policy presented by the Defendant. The Court held that the penalty, though representing 40% of the main obligation under the contract and being therefore "disproportionally high", did not per se violate the international public policy of Germany. The same principle applied to the decision on costs. In order to violate public policy, the Court held that additional circumstances such as abuse of economic power would have been necessary. 118. Finally, the Supreme Court of India in the case of Renusagar Power Co. Ltd v. General Electric Co76 held that enforcement of a foreign award would be refused on the ground that it is contrary to public policy if such enforcement would be contrary to (i) fundamental policy of Indian law; or (ii) the interests of India; or (iii) justice or morality. More specifically, on the objections of one of the parties based on unjust enrichment, the Court held, in 74 26 Sch 13/08, 16 October 2008 75 8 Sch 06/05, 6 October 2005 76 1994 SCC Supl. (1) 644 CA 1547/19 48 paragraph 100, that the case in question was not one of unjust enrichment, and that the objections raised were with regard to the quantum of the award by the Arbitral Tribunal. To hold that this amounted to unjust enrichment would hold to mean that in every case where an arbitrator awarded an amount higher than what should have been awarded would open the award to be challenged on the ground of unjust enrichment. Such a course was not permissible under the New York Convention. 119. In light of the above cited case law, and in the same vein as Renusagar (supra), we hold that awarding a greater quantum of compensation than that was due by an Arbitral Tribunal does not amount to violation of public policy, as the same would open floodgates and would require the courts to undertake an examination of each and every award, which is against the very spirit of the New York Convention. Resultantly, we hold that the award rendered by the Sole Arbitrator was not in violation of the public policy of Pakistan. 120. We agree with the finding of the Learned High Court at paragraph 57 of the Impugned Judgment, wherein it is stated: “…[the] non-interference or the pro-enforcement policy is in itself a policy of Contracting States, which is not easily persuaded by the public policy exception argument… The public policy exception acts as a safeguard of fundamental notions of morality and justice, such that the enforcement of a foreign award may offend these fundamentals… [T]he public policy exception should not become a back door to review the merits of a foreign arbitral award or to create grounds which are not available under Article V of the Convention as this would negate the obligation to recognize and enforce foreign arbitral awards. Such kind of interference would essentially nullify the need for arbitration clauses as parties will be encouraged to challenge foreign awards on the public policy ground knowing that there is room to have the Court set aside the award.” CA 1547/19 49 121. Conclusively, for the foregoing reasons, we hold: i. the Appellant’s contention that the award of the Sole Arbitrator to the extent of the Payment Agreement ought to be set aside is dismissed; ii. there has been no breach of Section 74 of the Contract Act on part of the Appellant by failure to take up the Make Up Gas, iii. the award rendered by the Sole Arbitrator does not violate the public policy of Pakistan. 122. The Appellant’s contentions are therefore misconceived, and this Appeal is dismissed accordingly. No order as to costs. 123. Lastly, I would like to extend and acknowledge my deepest gratitude for the diligent and extensive research carried out by Law Clerks Mahnoor Waqar and Ahmad Hassan on global jurisdictions and new points in issue on Arbitration Jurisprudence under Pakistan Law. Judge Judge Judge ANNOUNCED ON _________________ JUDGE “Approved for Reporting”

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE GULZAR AHMED MR. JUSTICE UMAR ATA BANDIAL CIVIL APPEAL NO.1560 OF 2008 (Against the judgment dated 12.8.2002 of the Lahore High Court, Lahore passed in C.R.No.353/1991) Muhammad Ramzan (decd) through L.Rs. etc. …Appellant(s) VERSUS Nasreen Firdous etc. …Respondent(s) For the appellant(s): Mian Abdul Aziz, ASC For respondents 1 to 8: Malik M. Tariq Rajwana, ASC Amicus curiae: Mr. Khalid Anwar, Sr. ASC Mr. Makhdoom Ali Khan, Sr. ASC Date of hearing: 21.10.2015 … JUDGMENT MIAN SAQIB NISAR, J.- The primary question in this Appeal, with leave of the Court dated 30.9.2008, is whether the Civil Courts in Pakistan have jurisdiction to entertain and adjudicate upon a suit for administration with regards to the property situate abroad. 2. In the context of the above, the facts in brief are:- that Mst. Hafi (now deceased), represented by the appellants as her legal heirs (hereinafter called the appellants) being the mother of Muhammad Anwar Irshad (deceased) who died in Islamabad on 26.3.1987 filed a suit for administration of his property(ies) in the Civil Court at Lahore, claiming that the deceased had left behind him Mst. Hafi as mother, Mst. Nasreen Firdous and Abida Begum (defendants No.1 and 2) as his widows and the remaining defendants as his sons and daughters. It was averred that the deceased had been settled Civil Appeal No.1560 of 2008 -: 2 :- in England and certain movable and immovable property(ies) situate in Pakistan as well as in England forms part of his estate (detailed in Schedule A and Schedule B of the plaint). It may be pertinent to mention here that the respondents/defendants, the legal heirs of the deceased, primarily resisted the suit in respect of the property(ies) abroad on the ground that the courts in Pakistan have no jurisdiction to entertain and adjudicate the matter, obviously meaning that they never submitted to the jurisdiction of the courts in Pakistan to the extent of the property situated abroad. 3. The learned Civil Judge seized of the matter, on the conclusion of the trial granted partial decree, in that, the suit to the extent of the property(ies) situated in Pakistan was allowed but to the extent of those abroad it was dismissed, holding that it does not have jurisdiction. The appeal filed by the appellants could not succeed and their civil revision before the learned High Court was also dismissed. Thus the judgment and decree of the Trial Court was maintained throughout. 4. Leave in this case was granted to consider the following questions:- “(i) Whether the courts below have fell in error in not giving effect to the mandate of Section 20 of C.P.C 1908 which, inter alia, provides that the suit could be instituted within the local limits of a place where the defendant resides at the time of the commencement of the suit? (ii) Whether the question of domicile of the deceased Muhammad Anwar Irshad could be a determinative factor on the question of jurisdiction of the court in the facts and circumstances of the instant case? (iii) Whether in the face of the evidence led to the effect that the parties admittedly reside permanently in Pakistan, would it not be in accord with the principle of forum non convenience for the courts in Pakistan to entertain the suit qua the administration of properties situated in England? (iv) Whether the respondents-defendants having agreed to the administration of properties and their respective shares in Civil Appeal No.1560 of 2008 -: 3 :- terms of the Islamic law and having not challenged the impugned judgments and decrees of the three courts below, invoking the said law, could they be allowed to raise the plea at this stage that in the administration of properties in England, the law in England would be applicable and not the Islamic law?” In the context of the above, two basic questions requiring resolution are as follows:- a) What is the substantive law to be applied? b) Which court has jurisdiction? These are completely independent questions which require to be considered separately. At present, there appears to be a lot of confusion and these two independent questions appear to have been jumbled together and thus there is lack of conceptual clarity. As regarding the question of the applicable substantive law, in order to determine the question of jurisdiction of the courts in line with the substantive municipal law of Pakistan, we will have to make recourse to sections 16 to 20 of the Civil Procedure Code, 1908 (CPC). In so far as sections 16 & 20 of the CPC are concerned, they raise complex questions leading to the need to conduct a deeper examination of related, but much broader issues of reconciliation of private international law in relation to the municipal law of Pakistan. The extent of jurisdiction of Pakistani Courts will also be determined in view of the established principles of private international law. 5. In respect of the municipal law of Pakistan, in order to address the first question as to the applicable substantive law, the provisions of Sections 16 to 20 of the CPC are relevant. It will be determined whether the appellants’ suit before the Civil Judge in Lahore was competently filed under the laws of Pakistan in relation to the property situated in England. Civil Appeal No.1560 of 2008 -: 4 :- In terms of section 16 C.P.C., such suits, in so far as they relate to immovable property, are to be instituted before the Court within whose territorial jurisdiction the property is situated. Section 16 ordains:- “16. Suits to be instituted where the subject matter situate. --- subject to the pecuniary or other limitations prescribed by any law, suits --- (a) for the recovery of immovable property with or without rent or profits, (b) for the partition of immovable property, (c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property, (d) for the determination of any other right to or interest in immovable property, (e) for compensation for wrong to immovable property, (f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate, or in the case of suits referred to in clause (c) at the place where the cause of action his wholly or partly arisen: Provided that a suit to obtain relief respecting or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or, in the case of suits referred to in clause (c) at the place where the cause of action has wholly or partly arisen or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain. Explanation - In this section "property" means property situate in Pakistan.” (emphasis added) Civil Appeal No.1560 of 2008 -: 5 :- It may be noted that the proviso contained in Section 16 prescribes that a suit may also be filed before a Court within the local limits of which the defendant resides, carries on business or works if the relief sought can be obtained entirely through his personal obedience. We may take this opportunity to dispel a commonly held perception that this proviso applies to all the categories of suits provided in subsections (a) to (f) of section 16. It is stressed that the language of the proviso is very clear and it does not apply to suits for determination of a right to, or recovery of immovable property. Be that as it may, from the clear and unambiguous language of the explanation of Section 16, there remains absolutely no doubt that the property(ies) which falls within the purview of the section are those which are situated in Pakistan and thus the Pakistani Courts shall have the sole and exclusive territorial jurisdiction in respect thereto. In other words, as per the mandate of law, the territorial jurisdiction of Pakistani Courts has been limited, restricted and circumscribed only to such property(ies) which are situated within the territorial boundaries of Pakistan. It may be pertinent to mention here that where a word/expression has been defined in the statute, it is settled law of interpretation that such word/expression has to be given the same meaning until and unless the assignment of such meaning would be patently in conflict with the express text of the said provision or would destroy the spirit and object of the provisions of law in which such expression/word appears or shall lead to an absolute absurdity. This principle is no less true for the explanation added to a particular section which (explanation) in law is a guideline for the purposes of explaining the true intent, object, purpose, letter and spirit of such a provision by the legislature itself, with the obvious consequence that the legislature means and intends to leave little room and opportunity for any Civil Appeal No.1560 of 2008 -: 6 :- misinterpretation and misapplication of the said section and would desire that the scope of the section should be construed in the manner as has been explained by the statute.1 Thus, it is clear that the Pakistani Courts as per the explanation shall only have the jurisdiction with respect to the property(ies) which are subject matter of the suit and falls within the territorial domain of Pakistan. Such interpretation of the relevant provisions of the C.P.C are duplicated in the Indian Jurisprudence as will be illustrated by briefly making reference to a few cases on the question of jurisdiction of courts to try suits pertaining to property situate outside the respective state. In the case of Premchand v. Hiralal (AIR 1928 Nagpur 295) while interpreting section 16 C.P.C, the learned judge agreed with the lower court which held that it had no jurisdiction over the movable or immovable property situated at Shahdole (outside British India). The learned Judge stated that:- “It seems to me very clear that the lower Court is right. The question is concluded by S.16, Civil P.C, as regards immovable property. The explanation to that section states that the word ‘property’ used therein means property situated in British India… Our Courts are governed by the Civil Procedure Code, and they cannot deal with immovable property situated where that Code does not run.”2 6. Having considered the provisions of Section 16, we feel it is expedient to make reference to Sections 17 to 19 of the CPC which also deal with the territorial jurisdiction of Pakistani Courts. It may be stated that Section 16, as per the interpretation given to it above, is the main and pivotal section which prescribes for the territorial jurisdiction of the courts 1 See PLD 1985 SC 92. 2 See also Gopi Chand v. Khazan Chand and others (A.I.R. 1938 Lahore 226) and Debendra Nath Bhattacharjee v. Amarendra Nath Bhattacharjee (A.I.R 1955 Calcutta 159). Civil Appeal No.1560 of 2008 -: 7 :- in Pakistan (i.e. the courts of plenary civil jurisdiction) and this section, as mentioned, has limited its jurisdiction only to the property(ies) which are situated in Pakistan with the obvious legal consequence that the property(ies) outside Pakistan are expressly excluded from the purview of jurisdiction of Pakistani Courts as a whole. Sections 17 to 19 when read and construed in the context of the subject matter jurisdiction are basically supplemental provisions to Section 16 and in fact and law, cater for a situation once the threshold of Section 16 vis-à-vis the jurisdiction of Pakistani Courts is crossed; it is then that if the Pakistani Courts have jurisdiction over the subject matter, that it should be settled and determined as to which court within Pakistan shall have the jurisdiction in the given circumstances of the case to try a suit of a particular nature. But for the application of these sections (17 to 19 CPC) it is essential that firstly the jurisdiction should vest in the Pakistani Courts in terms of Section 16. In other words, Section 16 is not only a threshold section for the conferment of jurisdiction to the Pakistani Courts but it is the portal through which the plaintiff has to enter for the purposes of entering into the city of jurisdiction of different courts in Pakistan. If, as per the mandate of law, such door is closed upon a plaintiff because the property, subject matter of a suit, is not within the limits of Pakistan, then such litigant is barred and precluded from invoking the jurisdiction of any other court of the country in terms of Sections 17 to 19. In the context of the above, if a judgment is required, reference can be made to a case reported as Yusuf Abbas and others Vs. Mst. Ismat Mustafa and others (PLD 1968 Karachi 480) (see paragraph 19 thereof). With respect to section 18 C.P.C, it maybe added that even if the property was situate in Pakistan (which is not the case in the present matter), section 18 C.P.C will ipso facto be inapplicable for the very reason that there is no uncertainty as to the respective jurisdiction of the courts in England in the Civil Appeal No.1560 of 2008 -: 8 :- instant case since the property in question lies within the territorial jurisdiction of England. In a similar vein, section 19 C.P.C is applicable only to suits for compensation for wrong to the person or movable property. It further applies to torts committed within Pakistan. The instant case has no nexus with the law of tort. 7. We will now consider whether the present matter falls within the purview of section 20 CPC. Learned counsel for the appellants while relying upon Section 20 of the CPC contends that the courts below fell in error in refusing to exercise the jurisdiction with respect to the property(ies) situated in Pakistan because of the reason that the cause of action had arisen to the appellants in Pakistan as the deceased had passed away in Pakistan and in support of the contention has relied upon Yusuf Abbas’s case (supra). Therefore, it seems expedient to consider the legal effect of the said section which reads as under:- “20. Other suits to be instituted where defendants reside or cause of action arises. --- Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-- (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. Civil Appeal No.1560 of 2008 -: 9 :- Explanation I.--- Where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence. Explanation II.--- A corporation shall be deemed to carry on business at its sole or principal office in Pakistan or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.” Ordinarily, section 20 C.P.C is to be read with and subject to the limitations prescribed in section 16 C.P.C, however, since section 16 C.P.C does not apply in relation to property situated abroad, section 20 C.P.C will have to be read independently in the present case. In terms of section 20 C.P.C, a suit may be filed in a Court within the local limits of which (a) all the defendants were actually and voluntarily residing, carrying on business or personally working for gain at the time of commencement of the suit, or (b) any of the defendants, where there are more than one, actually or voluntarily resides, or carries on business or personally works for gain provided that in such cases leave of the Court is obtained or the defendants who are not within the Court's jurisdiction acquiesce or (c) where the cause of action wholly or partly arises. The record of the present case clearly illustrates at the very least that at all times, all the main contending defendants nos. 1 to 8 were residing, carrying business or working outside Pakistan. This assertion is further supported by the fact that the address provided for the defendants nos. 1 to 8 is that of England and it is nowhere suggested that the defendants have at any time been residents of Pakistan or carried on business in Pakistan, or worked in Pakistan. Therefore, section 20(a) C.P.C evidently does not apply to the facts of the given case. Moving on to consider whether the present case falls within section Civil Appeal No.1560 of 2008 -: 10 :- 20(b) C.P.C, let it be said that if it is the case that at least one of the defendants permanently resides, carries on business or works in Pakistan, then, as necessitated by sub-section (b), leave of the court had to be obtained which was not done in the present matter. Furthermore, the defendants clearly did not acquiesce in relation to jurisdiction over the property situated in England as the jurisdiction of Pakistan in relation to the property in England is firmly disputed in the written statement of the defendants Nos. 1 to 9. Finally, sub-section (c) does not help the case of the appellants since the question of jurisdiction of the Pakistani Courts in relation to the property in Pakistan forms part of a separate cause of action than that in relation to the property situated in England. The factum of the distinct location of the properties alone gives rise to two separate causes of action. The aforementioned opinion is supported by a body of cases consistently decided by the learned courts of Pakistan. To mention but a few, in the case of Mst. Zainab Vs. Mst. Raji & others (PLD 1960 SC 229) the Supreme Court of Pakistan stated that even if the suit was not barred by section 16, and the Pakistani Courts could not assume jurisdiction in relation to property in India, since no effective decree could be passed by the Civil Court, their jurisdiction must be held to be barred by necessary intendment. In the case of Nadeem Ghani v. United Bank Limited (2001 CLC 1904), the Karachi High Court after examining section 20 C.P.C found to have jurisdiction to try to suit only because the Principal Office of United Bank Limited (defendant No.1) was situated in Karachi and the defendants Nos.2 and 3 in that case resided and worked for gain with defendant No.1 in Karachi, thus falling within the purview of section 20 C.P.C. However, as noted above, a perusal of the record reveals that is in an accepted position that the deceased and the defendants were at all material times domiciled Civil Appeal No.1560 of 2008 -: 11 :- in England and the defendants have been permanently residing there throughout. In the case of Heman & others v. Fazal (PLD 1955 Lahore 280) the learned Judge was only able to find that the Court in Pakistan had jurisdiction under section 20 C.P.C since the defendants were all residing within the territorial jurisdiction of the Court. In the case of Dr. Abdul Ghani & others v. Ismail & others (PLD 1958 Lahore 690 DB) there was a dispute in relation to the ownership of property abandoned in India at the time of partition. The trial court framed issues in relation to the jurisdiction and found that the civil court had jurisdiction. Thereafter, arguments were addressed on the issue of jurisdiction before the High Court and the case of Heman & others v Fazal (PLD 1955 Lah.280) was also cited. The High Court acknowledged that the facts of the case were almost identical to the facts in Heman. The High Court refused to follow the dictum in Heman and held that the courts in Pakistan are not competent to determine rights and interests in immovable property situated outside Pakistan The High Court further held that section 20 of CPC only applied to actions of a personal or transitory nature and not to actions of real or mixed kinds, which are exclusively governed by sections 16 & 17 of C.P.C. Going further, in the case of Haroon Ayoob Abdul Karim v Sulleman Ahmad & others (CLC 1983 162 SB-Karachi) shareholders of a company registered in Bombay filed a suit for accounts in Pakistan. Question arose as to whether the Pakistani courts had jurisdiction in respect of the subject-matter situated abroad. The learned single judge held that:- “it is not every action where mere presence of the defendants within the jurisdiction of the Court vests the Court with jurisdiction to pass a decree in respect of properties situate Civil Appeal No.1560 of 2008 -: 12 :- outside the jurisdiction”. The learned Judge went on to hold that since the records pertaining to the company were not available with the defendants either, even by obedience of the defendants, no effective order could be passed. The suit was accordingly dismissed. In this respect, it is notable that the presence of the defendant within the court’s jurisdiction would not ipso facto grant jurisdiction to the court under section 20 C.P.C for the simple reason that the property in question is within the territorial jurisdiction of another country which has the sole jurisdiction as will be discussed below in detail. Finally, in the case of Muhammad Sohail Sidddiqui v. Mst. Parveen (MLD 2010 1433 SB-Karachi), while discussing the principles in relation to letters of administration and succession certificates the learned court stated that:- “succession of the immovable property is regulated by the Law of the Country in which person had his domicile at the time of his death and Succession of Immovable property in Pakistan of a person deceased is regulated by the Law of Pakistan wherever such person may have had his domicile at the time of his death.” It thus follows that the appellants cannot further rely on Section 20 C.P.C in addition to section 16 C.P.C to argue that the suit was or can competently be filed in relation to all property, movable and immovable, situated in England. 8. After having considered the relevant municipal law, we will now consider the case relied upon by the appellants in the context of its application to the facts of the present case. The appellants have sought to rely on the Yusuf Abbas case to argue that the courts of Pakistan have jurisdiction over property in England and Civil Appeal No.1560 of 2008 -: 13 :- that the facts of the Yusuf case are identical to the facts of their case and it is fully applicable to the present situation. It must be pointed out that the appellants’ reliance on this case is flawed for the reason that it originates from an erroneous understanding of the ratio of the case. In addition to this, the facts of that case and the facts of the present case are completely distinct as will be made clear below. Two determinative features in the facts of the Yusuf Abbas case are not present in the present case: (i) the deceased in that case was domiciled in Pakistan hence invoking the jurisdiction of Pakistani courts; (ii) the defendants in that case were residing in Pakistan bringing the suit within the purview of section 20 C.P.C. Since the deceased was domiciled in Pakistan, the Pakistani Court already possessed jurisdiction under private international law to generally administer the entire estate of the deceased and the only issue was in relation to immovable property abroad which was subject to the rule of lex situs (discussed below). On the contrary, in the present matter, the deceased was not domiciled in Pakistan, rather it is undisputed that he was domiciled in England. As far as the obiter dictum in the Yusuf case is concerned, we must proceed cautiously before following the obiter. In that case the learned Judge was faced with the question of whether the Court could assume jurisdiction over immovable property abroad, and move away from the rule of lex situs, while administering the estate of the deceased who was domiciled in Pakistan. The learned High Court Judge discussed the English jurisprudence on this point in England at length in order to ascertain whether jurisdiction could be exercised in relation to property situated abroad. In this respect, it is pertinent to state that English law on this point is imprecise and at times inconsistent, hence the obiter in that case cannot be of assistance to the appellants in the present case. Civil Appeal No.1560 of 2008 -: 14 :- 9. The consideration of the substantive position under the municipal law of Pakistan leads us to the conclusion that the courts in Pakistan lack the jurisdiction to adjudicate upon foreign property in terms of the provisions of sections 16-20 C.P.C. 10. For the sake of being comprehensive, it may be mentioned here that the underlying basis or rationale for restricting the jurisdiction of a state within its own territory under municipal law stems from the respect for the territorial jurisdiction of another state. It is in this light that the principles of private international law must be appreciated. Let us now consider the question of jurisdiction under a parallel body of law, that is, private international law. Recourse is made to international law as the property in dispute being within the territorial jurisdiction of England invites the application of the recognized principles of private international law.. Whilst articulating this notion, it is of benefit to quote Ian Brownlie’sPrinciples of Public International Law (4th edn, Oxford University Press 2004) 299 wherein it is stated:- “...a state in normal circumstances maintains a system of courts empowered to decide civil cases and, in doing so, prepared to apply private international law where appropriate in cases containing a foreign element.” 11. Bringing our attention to bear on the principles of private international law, the law governing matters of cross-border succession to property are dealt with in line with the concepts of lex situs and lex domicilii. In order to understand these two concepts, we can turn to Cheshire, a renowned international law jurist, (Private International Law, Sixth End., p. 550). As noted by Cheshire, one of the cardinal rules of private Civil Appeal No.1560 of 2008 -: 15 :- international law in matters of cross-border succession is that the movable property of the deceased person is regulated by the laws of the country in which the deceased is domiciled; in the present case, the law of England constitutes the law of the country in which the deceased was domiciled. As to immovable property, the recognized rule governing real or immovable property is that such property is subject to the laws of the place within which it is situated; again, in the present case the laws of England will be applicable since the property in dispute is situated in England. This is the principle of lex loci rei sitae (or more commonly referred to as lex situs) which governs the question of jurisdiction as far as the immovable property is concerned. The rationale for these two principles, lex domicilii and lex situs is clearly to address and solve the problem posed by the notion of Conflict of Laws by resorting to the two stated concepts. It is of benefit to quote Cheshire who stated:- “...only the Courts of Situs can make an effective decree with regard to land”. The courts of situs in the instant case are the courts of England by reason of the fact that the disputed property is situated in England. Pakistan recognizes these well-settled rules of private international law as can be ascertained from a perusal of section 5 of the Succession Act, 1925 which is reproduced below:- “5. Law regulating succession to deceased person’s immoveable and movable property respectively: (1) Succession to the immoveable property in Pakistan of a person deceased shall be regulated by the law of Pakistan, wherever such person may have had his domicile at the time of his death. (2) Succession to the moveable property of a person deceased is regulated by the law of the country in which person had his domicile at the time of his death.” Civil Appeal No.1560 of 2008 -: 16 :- This Section clearly acknowledges the application of international law, particularly in matters of succession. 12. In the preceding paragraphs, after considering and applying the relevant municipal law under C.P.C (sections 16 to 20 respectively), we concluded that the jurisdiction of the courts of Pakistan is not extended to property situated outside its territory. We have further attempted to very briefly consider the applicable principles of private international law to answer the same question of jurisdiction and there too, as has been illustrated, we found that the courts of Pakistan must not adjudicate upon property which is situated in another country as the governing principles will be those of private international law as opposed to the municipal law of Pakistan. Viewed in this light, it is incumbent upon the courts of Pakistan to keep the principles of Conflict of Laws or Private International Law in mind whilst dealing with matters involving questions of cross-border succession. These principles are based on mutual respect for and recognition of, the judicial systems and the laws of other countries. 13. The property in dispute is undoubtedly and indisputably located inside the territorial jurisdiction of England thus barring the jurisdiction of Pakistan over the subject-matter property situated in England. A state may extend its jurisdiction to its nationals abroad, however, in the instant case, the deceased held dual nationality being both a Pakistani and a UK national simultaneously. In the case of Nadeem Ghani (supra) at paragraph 22 the Karachi High Court stated as follows:- Civil Appeal No.1560 of 2008 -: 17 :- “It is universally accepted that according to the comity of nations all legislation of a country is territorial, all exercise of jurisdiction is territorial in nature and the laws of a country apply to all its subjects, things and acts within its territory.” This case aptly noted the international principle of absolute nature of a state’s territorial jurisdiction is not to be extended beyond its territory and within the territory of another state, since in that case, it will be interfering with the territorial jurisdiction of England. Additionally, it may be mentioned that the courts in Pakistan should respect and give effect to (subject to certain exceptions), the judicial decisions of other countries on the same subject under the principle of 'judicial comity.' While acknowledging the doctrine of judicial comity, Mark Janis, (‘An Introduction to International Law 327 2003) noted that:- Roughly speaking, courts, according to the doctrine of international judicial comity, should apply foreign law or limit domestic jurisdiction out of respect for foreign sovereignty. The doctrine of judicial comity, being recognized and applied in the courts around the globe, was correctly acknowledged by the Lahore High Court in the case of Louise Anne Fairley v. Sajjad Ahmed Rana (PLD 2007 Lahore 300). The view that Pakistan should respect and give effect to the judicial decisions of other countries finds further support from section 13 C.P.C which reads, in so far as it is material, as under:- “13. When foreign judgment not conclusive.-- A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-- (a) Where it has not been pronounced by a Court of Civil Appeal No.1560 of 2008 -: 18 :- competent jurisdiction; (b) Where it has not been given on the merits of the case; (c) Where it appears on face of the proceedings to be founded on an incorrect view of International Law or a refusal to recognize the law of Pakistan in cases in which such law is applicable; (d) Where the proceedings in which the judgment was obtained are opposed to natural justice; (e) Where it has been obtained by fraud; (f) Where it sustains a claim founded on a breach of any law in force in Pakistan.” It is clear that foreign judgments are conclusive as to any matter thereby adjudicated upon and Pakistani courts must recognize and enforce the same. However, before enforcing any foreign judgment, a Pakistani court will have to ensure that it does not fall within any of the exceptions contained in section 13 C.P.C. For example, a Pakistani Court may not consider a foreign judgment to be conclusive if it has been pronounced by a Court of incompetent jurisdiction. In order to ascertain whether a judgment has been pronounced by a Court of competent jurisdiction, Pakistani courts will necessarily have to examine the principles of private and public international law to determine whether the subject matter of the foreign judgment fell within the jurisdiction of the foreign Court. If the judgment is found to have been pronounced in excess of the foreign Court's jurisdiction in view of the parallel body of law, that is, private international law, it will be deemed to have not been pronounced by a court of competent jurisdiction rendering the judgment inconclusive. When viewed in this light, it is correct to state that since the deceased and the defendants were Civil Appeal No.1560 of 2008 -: 19 :- domiciled in England, the English courts will have jurisdiction and their verdict on the matter, in respect of property situate there should be considered final by the Pakistani Courts. Similarly, under section 13(c) C.P.C it is expressly acknowledged that a foreign judgment will not be conclusive where it appears to have been founded on an incorrect application or understanding of private international law or a refusal to recognize the law of Pakistan where such law is applicable. These provisions, along with section 5 of the Succession Act 1925 establishes, beyond any doubt, that the courts of Pakistan recognize the principles of private international law and are bound to apply the same wherever necessary. A corollary to the above is that if a Pakistani court passes a judgment without regard to the principles of private international law, its pronouncement may not be considered to be conclusive by foreign courts for having usurped the jurisdiction of a foreign court, even if in substance the case is rightly decided. In light of the above we are persuaded to hold that Pakistan must refrain from exercising its jurisdiction because the property in dispute is situated within the territorial jurisdiction of England. 14. This logically leads us to the second question, as stated in the Leave Granting Order, which can be answered in the affirmative. The very nature of the present case invites the operation of private international law; as such the domicile of the deceased will be a determinative factor to the extent of the movable property of the deceased abroad. The movable property abroad will be subject to rule of lex domicilii. Such a rule finds further support in the present case because not only was the deceased domiciled in England; he was also a British national in addition to holding a Pakistani nationality. The appellants have further tried to argue that the deceased’s Civil Appeal No.1560 of 2008 -: 20 :- domicile continued to be of Pakistan in terms of section 7 of the Succession Act 1925. However, this argument is not sustainable in view of section 9 and 10 of the Succession Act 1925. Section 9 of the Succession Act 1925 states that the domicile of origin only prevails until a new domicile is acquired. Section 10 of the same act states that a man acquires a new domicile by taking up his fixed habitation in a country other than the country of his origin. The determination of the question of domicile can be slightly difficult at times since it involves an element of subjectivity. However, in the present case it is an admitted position that the deceased had taken up permanent residence in England and acquired a new domicile which will prevail over his domicile of origin. Reference can be made to the mentioned sections below: “7. Domicile of origin of person of legitimate birth. The domicile of origin of every person of legitimate birth is in the country in which at the time of his birth, his father was domiciled, or, if he is a posthumous child, in the country in which his father was domiciled; or, if he is a posthumous child, in the country in which his father was domiciled at the time of the father's death. ……. 9. Continuance of domicile of origin. The domicile of origin prevails until a new domicile has been acquired. 10. Acquisition of new domicile. A man acquires a new domicile by taking up his fixed habitation in a country which is not that of this domicile of origin.” In this regard reference may be made to 1975 SCMR 265, Ms Amtul Naseer Sami vs. Secretary Health, Govt of Baluchistan wherein at p.267 this court held that the “residence must answer on qualitative and quantitative test, and that the courts have regarded naturalization, Civil Appeal No.1560 of 2008 -: 21 :- purchase of house or burial ground, exercise of political rights, financial expectations, establishment of children in business, place where a man’s wife and family reside as indicia of his intention in regard to residence.” In light of the above, it is clear that the newly acquired domicile of the deceased (domicile of England) will prevail in the present situation. 15. As regarding question (iii), this issue has been framed due to the incorrect appreciation of facts by the learned counsel for the petitioner. This, as it appears from question (i) and (iii) in the Leave Granting Order, has erroneously led the Supreme Court to believe that all the parties in the case are admittedly residing in Pakistan. This proposition is incorrect in light of the record available from which it is immediately discernible that the deceased and the material defendants have been permanently residing in England. As noted earlier, this is evidenced by the fact that in all the pleadings filed by the appellants themselves, the address of the respondents provided is that of England alone. Therefore, on the correct appreciation of facts, it is maintained that the courts in Pakistan lack jurisdiction in so far as it is rightly discovered that the defendants did not reside permanently in Pakistan. 16. As regarding the final question (iv), suffice it to say that this point has not been pressed by the learned counsels for the parties. 17. It light of the entire discussion undertaken, it may be stated that even if the rules of private international law are disregarded, the suit of the appellants in relation to the property situated abroad could only be entertained if it was brought within the purview of section 20 C.P.C., as is clearly laid down in paragraph 21 of the judgment in the Yusuf Abbas case. But for the reasons stated above and from the given facts of the case, the present matter does not fall within the purview of section 20 C.P.C. Hence, Jurisdiction in relation to the property situated in England will necessarily have to be determined with regard to the relevant principles of private Civil Appeal No.1560 of 2008 -: 22 :- international law. The courts of Pakistan could only take cognizance in relation to the immovable property situated in Pakistan subject to the limitations prescribed in section 16 of the C.P.C. It may be contended that they should not even have determined the rights to the movable property in Pakistan inter se the parties in derogation of the rule of lex domicilii in private international law. However, this element may have become irrelevant since the defendants submitted to the jurisdiction of Pakistani courts in relation to the movable property in Pakistan and therefore the Pakistani courts were competent to determine the rights of the parties in relation to the same. But there is no legal justification for the courts in Pakistan to assume jurisdiction over any property, movable or immovable, situated in England. Conclusion: As can be discerned from the preceding discussion, cross-border succession gives rise to the most important question of jurisdiction of the courts. It must be understood that the question of jurisdiction is separate from the issue of the applicable law. It is correct to state that the English courts may apply Muslim law in such a case, hence the question to be addressed never revolved around the law applicable, rather the question was ultimately whether the courts in Pakistan had the jurisdiction as under sections 16 to 20 C.P.C to entertain the suit in question and adjudicate upon the disputed property in England. Based on the reasons detailed above, this Court has answered the question in the negative, affirming the concurrent findings and conclusion of the courts below. The plain application of the relevant sections of C.P.C provides that the courts in Pakistan will have jurisdiction in respect to property situated in Pakistan. The said sections do not envisage an extra-territorial exercise of jurisdiction, neither is such an extra-territorial exercise of jurisdiction desirable in clear violation of sections 16-20 C.P.C and also in line with the established and recognized principles of private international law. Civil Appeal No.1560 of 2008 -: 23 :- In view of private international law this Court finds that the international responsibility of Pakistan to respect the territorial jurisdiction of England cannot be ignored. It has never been disputed that the property in dispute is situated outside Pakistan. As far as the Pakistani courts possessed jurisdiction over to the property situated in Pakistan, the decision was given in favor of the plaintiff Mst. Hafi (now deceased). 18. In light of the foregoing, the discussion of the applicable law and the reasons given thereafter led to the conclusion that this appeal fails and is accordingly dismissed. JUDGE JUDGE JUDGE Announced in open Court on 16.12.2015 at Islamabad Approved For Reporting Waqas Naseer/*

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: MR. JUSTICE GULZAR AHMED, HCJ MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI Civil Appeal No.1562/2020, C.M.A.259-Q/2020 in C.A.1562/2020 and C.A.1563/2020, C.M.A.260-Q/2020 in C.A.1563/2020, C.A.1564/2020, C.M.A.262-Q/2020, C.A.1565/2020 and C.M.A.264- Q/2020 in C.A.1565/2020 (On appeal from the judgment dated 16.9.2020 passed by the High Court of Balochistan, Quetta in C.P.No.970/2015, CP.1011/2015,CP.1258/2015,1257/2018 -------------------- Quetta Development Authority through Director General v. Abdul Basit and others …Civil Appeal No.1562/2020 Quetta Development Authority through Director General v. Abdul Basit and others ..C.M.A.259-Q/2020 Quetta Development Authority thr: Director General v. Asif Ali and others ..C.A.1563/2020 Quetta Development Authority thr: Director General v. Asif Ali and others . .C.M.A.260-Q/2020 Quetta Development Authority thr: Director General v. Aziz Ahmed ..C.A.1564/2020 Quetta Development Authority thr: Director General v. Aziz Ahmed ..C.M.A.262-Q/2020 Quetta Development Authority thr: Director General v. Abdul Jalil ..C.A.1565/2020 Quetta Development Authority thr: Director General v. Abdul Jalil ..C.M.A.264-Q/2020 …Appellant/Applicant/Respondents Civil Appeal No.1562/2020, etc 2 For the appellants (In all cases): Syed Ayaz Zahoor, ASC (Via Video Link, Quetta) For the respondents In CAs.1562-1563/20: Mr. Gul Hassan Tareen, ASC (Via Video Link, Quetta) Syed Rifaqat Hussain Shah, AOR Respondent (In CAs.1564-1565/20): Nemo Date of hearing: 31.5.2021 Judgment MAZHAR ALAM KHAN MIANKHEL, J-. The Quetta Development Authority (‘QDA’) duly advertised different posts in various pay scales. After completing all the codal formalities under ‘Quetta Development Authority Employees (Service) Regulations 2010’, (‘Regulations’), Departmental Selection Committee recommended the names of successful Applicants/candidates for appointment to different posts. The Director General (‘DG’), QDA in exercise of powers conferred upon him under ‘Quetta Development Authority Ordinance, 1978’, (‘The Ordinance’), vide its order dated 8th January, 2013 issued their appointment orders and resultantly almost all such appointees submitted their joining reports for their respective posts. But just after few days of such exercise, their appointments were withdrawn/cancelled by the DG, QDA, (‘the appointing authority’), vide its two different orders dated 24th January, 2013 and 12th February, 2013. For ready reference both the orders are reproduced hereinbelow respectively:- “QUETTA DEVELOPMENT AUTHORITY Dated Quetta the 24 January 2013 ORDER No.1-16/78(135) Admn: 1860-66/. In view of weak financial position of QDA, decreasing of interest rates on Term Deposits of QDA by commercial banks and non-receipt of grant-in-aid, the recruitment orders of staff issued vide this Civil Appeal No.1562/2020, etc 3 office order No.1-16/78(135) Admn1574 to 1732 dated 8th January 2013 and No.1-16/78(135) Admn: 1733 to 1855 dated 9th January 2013 are hereby withdrawn/cancelled. Sd/- DIRECTOR GENERAL Quetta Development Authority” ----------------------------------------- ORDER - dated-12.2.2013: “No.1-16/78(135) Admn:525-30). In view of weak financial position of QDA, decreasing interest rates on Term Deposits of QDA by commercial banks and non-receipt of grant-in-aid, the recruitment orders of staff issued vide this office order No.1- 16/78(135)Admn: 1553-60 dated 8th January 2013, office order No.1-16/78(135) Admn: 1561-67 dated 8th January 2013 and No.1-16/78(135) Admn: 1567-74 dated 8th January 2013 are hereby withdrawn/cancelled”. 2. The said orders were questioned before The High Court of Balochistan, Quetta (‘The High Court’). The High Court vide its detailed and elaborate consolidated judgment dated 12th January, 2015 rendered in different Writ Petitions, filed by some of the affectees, set aside the above noted withdrawal/cancellation orders by allowing their Writ Petitions, and declared the said orders to be null and void having no legal effect and their appointment orders were restored. This Court vide its judgment dated 18th September, 2015 passed in Civil Petition No.167/2015, etc dismissed the Civil Petitions and refused to grant the leave to appeal by upholding the judgment of The High Court dated 12th January, 2015. The said order was complied with and acted upon to the extent of the Petitioners of the Writ Petitions. The present Respondents, being the remaining affectees of the withdrawal/cancellation orders (noted above) regarding their appointments, submitted their applications for reinstatement in the light of judgments rendered by The High Court and The Supreme Court noted Civil Appeal No.1562/2020, etc 4 above, but the present Appellant-DG, QDA, turned down their request. They being aggrieved and having no other remedy, approached The High Court with their respective Constitutional Petitions which were allowed vide the impugned judgment dated 16th September, 2020 and the Respondents, herein, were ordered to be reinstated to their respective posts in the light of recommendations of the Departmental Selection Committee and their respective appointment orders. The DG, QDA, feeling aggrieved, approached this Court with leave of this Court dated 23rd December, 2020. 3. Learned counsel for the parties were heard and record of the case perused. The main contention of the learned counsel for the Appellant was that the Constitution Petitions before The High Court filed by the Respondents were hit by the principle of laches as many of the same were filed by the Respondents after about two years and ten months. Besides the above, his next stance was that the Respondents were project employees and as per terms and conditions of their appointment orders, their services were liable to termination without assigning any reasons. Whereas the learned counsel for the Respondents, simply sought for the alike treatment to the Respondents as was meted out to the similarly placed employees of QDA who were appointed with the Respondents vide the same appointment orders dated 8th January, 2013 on similar terms and conditions of service, as per mandate of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 (‘The Constitution’). He further argued that principle of laches in such circumstances, looses its force. He went on to maintain that orders of withdrawal/cancellation of appointment orders had earlier been struck down qua the litigating affectees in earlier round of litigation and the same has attained finality; validity of which now cannot be considered/challenged in the present set of Writ Petitions. Civil Appeal No.1562/2020, etc 5 4. Perusal of the record would reveal that process and procedure of appointment of the present Respondents and the Petitioners of earlier Writ Petitions, as noted above, had never been a question under dispute. It was the subsequent two orders of withdrawal/cancellation of the appointments made by the DG, QDA, as reproduced above. The legality/validity of the said two orders was elaborately discussed and considered by The High Court in its earlier consolidated judgment dated 12th January, 2015 and the same was upheld by this court vide its judgment dated 18th September, 2015. The present Appellant had contested the earlier round of litigation, and was fully aware of the entire episode in the Courts. The Appellant, (the same authority/person) in the present round of litigation, has once again raised the same points of facts and the law regarding nature of appointments and then dismissal from service of the Respondents and the learned counsel for the Appellant, even argued the same points today in the Court. The earlier part of the litigation has come to an end and has attained finality between the parties. That, questions once decided by the competent Court of law, cannot be re-agitated again by the Appellant. This aspect/issue will act as res judicata against him precluding him to question the order of appointments and then dismissals. The pros and cons of the appointments and the dismissal orders of the Petitioners in earlier round of litigation, were thoroughly considered by The High Court and then upheld by this Court. These have attained finality, not open to any further dilation and consideration. The present round of litigation has been narrowed down only to the question of entitlement of the Respondents as per the mandate of Article 25 of the Constitution. Whether they can be extended the same relief/benefit as was extended to their similarly placed colleagues through the intervention of the Court in an earlier round of litigation. We in the peculiar circumstances of the case, legally can only Civil Appeal No.1562/2020, etc 6 look into this aspect of the case. It’s a matter of record that present Respondents were appointed on the same terms and conditions of service as that of the Petitioners of earlier Writ Petitions who have been given relief by the Court by restoring their orders of appointment and declaring the orders of withdrawal/cancellation as null and void, having no legal effect. The present Respondents were hired and fired together in the same manner as Petitioners of earlier Writ Petitions and are standing on the same pedestal as the earlier one. Both the sets of appointees cannot be separated from each other with regard to their appointments and dismissal. The only difference between the two sets is that the earlier group is the one who litigated for their rights and second group, the present Respondents, did not go to litigation earlier and through instant litigation has sought the relief already given to the first group who litigated. To claim such a relief is their fundamental right and the Constitution extends protection to their such right and as such they cannot be treated differently. The scale of justice has to be balanced on the same pattern. This is the mandate of Article of 25 of the Constitution. The law of the land in this regard has become well established. References in this regard can be made to the cases of Hameed Akhtar Niazi v. Secreatry, Establishment Division (1996 SCMR 1185), Tara Chand v. Karachi Water and Sewerage Board (2005 SCMR 499), Government of Punjab v. Sameena Parveen (2009 SCMR 1) and Secretary, Government of Punjab, Finance Department and 269 others v. M. Ismail Tayer and 269 others (2014 SCMR 1336). When we hold that the Respondents being equally and similarly placed as the Petitioners of earlier Writ Petitions, then they become entitled to the same relief which was extended to them. 5. In view of the law laid down by this Court (noted above), we cannot non-suit the Respondents and allow the laches to be a stumbling block in the way of dispensation of justice. This will amount to a refusal of a Civil Appeal No.1562/2020, etc 7 fundamental right accrued in their favour after earlier decisions of The High Court and this Court. The rule of laches is applied in accordance with facts and circumstances of each case. It cannot be made a rule of universal application. The question of laches, in the circumstances looses its force. The earlier judgment of The High Court was upheld by this Court and has attained finality. So, The High Court has very aptly dealt with the matter in favour of present Respondents in the present round of litigation. 6. We in the circumstances find no merit; hence these appeals are dismissed with no order as to costs. All the CMAs are also disposed of accordingly. Chief Justice Judge Judge Islamabad, 31st May, 2021 Sarfraz /- ‘’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 MUSHIR ALAM MR. JUSTICE FAISAL ARAB MR. JUSTICE SAJJAD ALI SHAH MR. JUSTICE MUNIB AKHTAR CIVIL APPEAL NO.1563 OF 2014 AND CIVIL PETITIONS NO.2215-L OF 2017 AND 471-L OF 2018 (Against the impugned judgments dated 15.09.2014, 19.06.2017 and 22.02.2018 passed by the Lahore High Court, Lahore in C.O. No.51/2013, C.M. No.37/2016 in C.O. No.51/2013 and C.M. No.16/2018 in C.O. No.51/2013, respectively) Shoaib Ullah Cheema (in C.A. No.1563/2014) S. Zafar Ali Shah (in C.P. No.2215-L/2017) Shoaib Ullah Cheema (in C.P. No.471-L/2018) … Petitioner(s) VERSUS Additional Registrar of Companies, S.E.C.P. etc. (in all cases) … Respondent(s) For the appellant/ petitioner(s): Mr. Shoaib Ullah Cheema, in person (in C.A. No.1563/2014 and C.P. No.471-L/2018) Nemo (in C.P. No.2215-L/2017) For the respondent(s) SECP: Mr. Muqtadir Akhtar Shabbir, ASC Mr. Nasrullah Khan Babar, ASC Date of hearing: 08.01.2019 JUDGMENT MIAN SAQIB NISAR, CJ:- On 18.08.2003, the Additional Registrar of Companies, Securities and Exchange Commission of Pakistan (SECP; the respondent) moved a petition (C.O. No.51/2003) before the Lahore High Court, Lahore for the winding up of Forex Services International (Private) Limited (the Company) alleging that it was involved in the illegal business of receiving deposits from the public. On 27.04.2005, the learned High Court appointed Mr. Fakhar Hayat and Syed Zafar Ali Shah as the official liquidators. Subsequently on 21.05.2007, Syed Zafar Ali Shah joined government service leaving behind Mr. Fakhar Hayat as the only liquidator (the Liquidator). On 31.05.2013, Mr. Shoaib Ullah Cheema (the C.A. No.1563/2014 etc. -: 2 :- instant appellant) filed an application before the learned High Court for removal of the Liquidator (the Application) on the ground that the Liquidator had failed to complete the winding up process within the period stipulated in Section 326 of the Companies Ordinance, 1984 (the Ordinance). This Application was dismissed by the learned High Court vide order dated 15.09.2014 (Dismissal Order) against which the instant appellant filed an appeal (C.A. No.1563/2014) before this Court under Section 10(1) of the Ordinance. Leave was granted vide order dated 21.11.2014 in the following terms:- “In order to consider whether the official liquidator having not completed liquidation process within time contemplated by Section 326 of the Companies Ordinance, 1984 was liable to be removed and the audit of the company under liquidation was expedient and imperative; the true import and spirit of Section 326(3) of the Ordinance ibid, leave is granted…” Be that as it may, on 23.02.2015, the respondent raised an objection regarding the maintainability of the appeal stating that a direct appeal to the Supreme Court under Section 10(1) of the Ordinance lies only against a winding up order of the Company Judge, and that any order passed in the winding proceedings other than the winding up order, such as the Dismissal Order, is to be assailed through an intra-court appeal before a Division Bench of the High Court in terms of Section 10(2) of the Ordinance. On 23.02.2015, this Court appointed Mr. Khalid Anwar, Sr. ASC and Dr. Parvez Hassan, Sr. ASC as amici curiae in to assist this Court on the key preliminary question that arises from the instant proceedings, i.e. what is the scope of a direct appeal to this Court under Section 10(1) of the Ordinance. In the meantime, the learned High Court passed an order dated 19.06.2017 which directed (in C.M. No.37/2016) Syed Zafar Ali Shah (ex-Official Liquidator) to refund to the respondents certain amounts in the liquidation account. This order has been challenged by Syed Zafar Ali Shah before this C.A. No.1563/2014 etc. -: 3 :- Court through an appeal under Section 6(1) of the Companies Act, 2017 (the Act). The learned High Court passed another order dated 22.02.2018 dismissed the objection petition (C.M. No.16/2018) filed against the auction conducted that was approved vide order dated 04.12.2017. This order has been challenged by the appellant again through an appeal under Section 6(1) of the Act. 2. The appellant in person simply relied upon the arguments of the learned amicus Dr. Pervaiz Hassan, Sr. ASC and supported the stance that a winding up order as well as any other order passed by the Company Judge in the winding up proceedings after a company has been ordered to be wound up can be appealed against before the Supreme Court pursuant to Section 10(1) of the Ordinance. On the other hand, the learned counsel for the respondent submitted refuted this position and stated that this was not the correct position law – the appeal before this Court is not maintainable as the impugned order had to be challenged before a Division Bench of the learned High Court as per the law. 3. Before proceeding further, it is worthy to note Section 10 of the Ordinance which reads as under:- “10. Appeals against Court orders.- (1) Notwithstanding anything contained in any other law, an appeal against any order, decision or judgment of the Court under this Ordinance shall lie to the Supreme Court where the company ordered to be wound up has a paid-up share capital of not less than one million rupees; and, where the company ordered to be wound up has paid-up capital of less than one million rupees, or has no share capital, such appeal shall lie only if the Supreme Court grants leave to appeal. (2) Save as provided in sub-section (1), an appeal from any order made or decision given by the Court shall lie in the same, manner in which and subject to the same conditions under which appeals lie from any order or decision of the Court. C.A. No.1563/2014 etc. -: 4 :- (3) An appeal preferred under sub-section (2) shall be finally disposed of by the Court hearing the appeal within ninety days of the submission of the appeal.” 4. We also find it expedient to mention the cases considered by this Court for resolution of the question involved in the instant matter. The relevant cases of this Court are: (1) Kamaluddin Qureshi Vs. Ali International Company (PLD 2009 SC 367); (2) Ibrahim Shamsi Vs. Bashir Ahmed Memon (2005 SCMR 1450); (3) Diamond Industries Vs. M. Zafar-ul-Haq Hijazi (PLD 2003 SC 124); (4) Fiala Spinning Mills Limited Vs. International Finance Corporation (2002 SCMR 450); (5) United Rank Limited Vs. Pakistan Industrial Credit and Investment Corporation Limited (PLD 2002 SC 1100); (6) Glorex Textile Limited, Karachi Vs. Investment Corporation of Pakistan (1999 SCMR 1850); (7) Sindh Tech. Industries Limited Vs. Investment Corporation of Pakistan (1998 SCMR 1533); (8) Brother Steel Mills Limited Vs. Mian Ilyas Miraj (PLD 1996 SC 543); and (9) Muhammad Din and Sons Private Limited Vs. Allied Bank of Pakistan (1993 SCMR 80). The germane cases of the High Court of Sindh are: (10) Zulfiquar Hussain Vs. Bambino (Private) Limited (2011 CLD 1737); (11) Syed Wajahat Hussain Zaidi Vs. T. J. Ibrahim & Company (2009 CLD 1225); (12) Additional Registrar of Companies Vs. Noorie Textile Mills Limited (2008 CLD 277); (13) Agha Fakhruddin Khan Vs. Ruby Rice and General Mills Limited and others (2001 YLR 1797); (14) Muhammad Faroog Vs. T. J. Ebrahim & Company and Alliance Motors (Private) Limited (PLD 1999 Karachi 246) and (15) Mehboob Industries Limited Vs. Pakistan Industrial Credit and Investment Corporation Limited (1988 CLC 866). The relevant cases from the Lahore High Court are reported as: (16) Asghar Ali Vs. Official Liquidator (2007 CLD 888); (17) M. Suleman & Company Vs. Joint Official Liquidators (1997 CLC 260); (18) M. Sunrise Textiles Limited Vs. Mashreq Bank PSC and others (PLD 1996 Lahore 1); (19) Chaudhry C.A. No.1563/2014 etc. -: 5 :- Jamil Ahmad Vs. Nippon Bobbin Company (Pakistan) Limited (PLD 1991 Lahore 467); and (20) Lahore Development Authority, Lahore Vs. Investment Corporation of Pakistan, Karachi (2003 CLD 1764). Finally, the related case of the High Court of Balochistan is (21) Industrial Development Bank of Pakistan Vs. Kamal Enterprises Limited (PLD 1995 Quetta 41). 5. The superior courts of Pakistan while interpreting the scope of Section 10(1) of the Ordinance in the aforementioned case law have laid down the following principles:- i. An appeal against an order of winding up only lies before the Supreme Court under Section 10(1) of the Ordinance while all other orders in a winding up proceedings are appealable before the Division Bench of a High Court under Section 10(2) of the Ordinance [Cases (1); (11), (13) and (15)]; ii. An appeal against an order of winding up and any order or decision passed subsequent to the winding up order of a company shall lie before the Supreme Court in terms of Section 10(1) of the Ordinance [Cases (2), (9), (10), (14), (16), (17), (18), (19), (20) and (21)]; iii. Orders passed under Section 10(2) of the Ordinance in exercise of the original civil jurisdiction of a High Court are appealable before a Division Bench of the High Court [Case (3)]; and iv. Section 10(1) of the Ordinance does not debar a company from making an application before the Company Judge for setting aside an ex-parte winding up order passed against it [Case (12)]. It is pertinent to note that in some cases, appeals were filed before the Supreme Court under Section 10(1) of the Ordinance against post-winding up orders. Similarly, appeals were also filed before the Division Bench of the High Court under Section 10(2) of the Ordinance against orders passed subsequent to the winding up order. But in these cases, the Supreme Court C.A. No.1563/2014 etc. -: 6 :- or the Division Bench of the High Court did not address the issue of maintainability of the appeals [Cases (4), (5), (6), (7), (8) and (11)]. 6. Be that as it may, we find it expedient to discuss in detail the judgment passed by this Court regarding the issue at hand. The case of Kamaluddin Qureshi (supra), dealt with the scope of Sections 10(1) and 10(2) of the Ordinance. A three-Member Bench of this Court declared that an appeal under Section 10(1) can only be made to the Supreme Court against a winding up order and appeals against all other orders can be made under Section 10(2). The relevant paragraphs read as under:- “8. At this juncture before proceeding further, it may be appropriate to consider the scope, consequences and effect of an order of winding up of a Company. An order of winding up of a Company encompasses activities in different spheres of economic activity and effects interests of divergent nature. The investment of shareholders and investors are at stake. The various contracts with those supplying or providing services to the company and their economic activities are affected. In case, the Company is engaged in providing goods or services, of essential or of daily requirements of the community, such order may cause abrupt withdrawal of all such products or services being provided by the Company under liquidation. The various works undertaken by the Company or under different contracts are brought to a standstill. The recovery of taxes, duties and levies resulting from the activities is discontinued, last but not the least. The entire range of creditors, suppliers, Bankers, financers and employees entitled to their respective dues are also exposed to difficulties and uncertainties. No order passed under the Company law has consequences of such diversity and magnitude. Thus, the order of winding-up being entirely distinguishable stands out on a different pedestal than any other order relating to any specific subject matter or dispute. No order passed either before the order of winding up or afterwards can, therefore, be equated with an order of winding up with respect to its consequence. It has been repeatedly held the right to appeal is a substantial right. The remedy of an C.A. No.1563/2014 etc. -: 7 :- appeal is available only where expressly provided and in the manner it is provided. Subsection (1) of section 10 of the said Ordinance starts with the non-obstante clause and this has an overriding effect over any other law it confers a right to appeal against an order of winding up. The intent of the legislature to provide the remedy of an appeal against an order of winding up of a Company, directly to the Supreme Court is reflected in unambiguous terms irrespective of the fact and nature of the proceedings that may lead to an order of winding up of a Company. The scope of an appeal has therefore, been widened to provide remedy irrespective of the source or basis of such order by use of the words "an order decision or judgment of the Court" which if not challenged in appeal would otherwise attain finality as an order of winding up as is apparent by the use of the words "where the Company ordered to be wound up." The remedy provided is subject to further conditions; that in case the Company ordered to be wound up has a paid up capital of not less than one million rupees an appeal would lie to this Court but where the Company ordered to be wound up has a paid, up capital of less than one million rupees the remedy is subject to an additional condition' of grant of leave to appeal. The subsection thus creates a distinction between cases involving the order of winding up of the Company and the remedy of a direct "appeal" or "after grant of leave to appeal" before the Supreme Court on the basis of the paid up share capital of the Company. It may not be out of place here to examine the consequences of interpretation of section 10(1) of the Ordinance differently so as to apply to appeals against any order, decision or judgment of the Court other than that the order of winding up of a Company. The right of appeal conferred under the said Ordinance which is a special enactment; adopting any other interpretation, would lead to an anomalous situation. An example of which may be case [sic] where an appeal involving a claim of a creditor for over a million rupees brought before the Court against order of a Company Judge in a case where the paid up capital of the limited Company is less than one million; a petition for leave to appeal would lie in spite of the fact that the amount over one million against a Company under liquidation merely because of the paid up capital C.A. No.1563/2014 etc. -: 8 :- being less than one million rupees, A different remedy of a direct appeal to Supreme Court is provided to a creditor having a claim for a few thousand rupees against a Company with a paid up capital of over one million would have a right to file a direct appeal against a finding of a Company Judge pertaining to his claim involving a Company under liquidation although their claims may otherwise be similar except for the difference in amount of respective claims. This prima facie is obvious discrimination amongst the creditors. Secondly for the aforesaid reasons such interpretation would also be in direct conflict with the provisions of Article 185(d) (e) of the Constitution of Islamic Republic of Pakistan pertaining to appeals before the Supreme Court. There is no distinction regarding appeals prior to passing of an order of winding up of a Company. Such restriction can only be inferred by addition of words to this effect but in view of the plain meanings of the word no addition is required because the language of the statute is clear and unambiguous they are to he given their ordinary meaning as held in Pakistan through Secretary Finance and others v. Messrs Lucky Cement and another 2007 SCMR 1367. It appears that the learned Bench of this Court; for the legal acumen and learning of the Honourable members of which we have the highest regard and hold in high esteem; was not properly assisted in this case, while considering the case of Ibrahim Shamsi (supra), as a result of which this aspect escaped notice and the anomaly resulting in practical terms case a different interpretation is adopted escaped consideration. Both subsections (1) and (2) of section 10 of the said Ordinance deal with the remedy of appeal provided by the law. Subsection (2) provides that an appeal from any order made or decision shall lie in the same manner and subject to the same conditions under which appeals lie from any order or decision of the Court. This subsection appearing after subsection (1) makes no distinction between orders prior to or subsequent to an order of winding up. It appears after subsection (1) and pertains to the same subject matter, therefore, subsection (2) is attracted to and further regulates all the cases of appeals including appeals against orders C.A. No.1563/2014 etc. -: 9 :- passed after an order of winding up of a Company. The scope of the subsection has been widened b use of the words "an appeal or decision" given to include and to a. to all appeals except those covered by subsection (1) of section 10. The clear wording and sequence of the two subsections of section 10 of the Ordinance cannot be stretched as the same would amount to doing violence to the provisions of that section. … It shows that subsection (1) of section 10 deals only with appeals against order of winding up of a Company. The above view finds further support from the provisions of the subsequent subsection (2) of section 10 of the Ordinance, which specifically [sic] worded "save as provided in subsection (1)". The second subsection is unconditionally attracted to an appeal against "any order made or decision given by a Court" and is not restricted to an appeal preferred before or after passing of an order of winding up of a Corn an nor to the value of the subject matter. The legislature has not intended to place any restriction or impediment to the appeals filed under this subsection. Yet another important and significant aspect is that winding up orders passed are to be examined as to the various aspects for revival of the Company to be determined on consideration of its further viability. Effort is made to continue the business particularly in cases of a running Company and any delay may lead to irreparable losses and drastic consequences as held by this Court in the case of Hala Spinning Mills Ltd. v. International Finance Corporation and another 2002 SCMR 450. 12. In view of the above discussion, we have no option but to hold that the provisions of subsection (2) of section 10 are attracted to appeals referred in cases except the appeals against an order of winding up, which is distinct and has multi dimensional effects with far reaching consequences as already discussed above.” [Emphasis supplied] 7. The brief background of the case of Ibrahim Shamsi (supra) is after the winding up order of Sindh Alkalis Limited Karachi was passed by C.A. No.1563/2014 etc. -: 10 :- the Company Judge, an order was passed which declared that the Official Assignee had received improved bids and the two highest bidders should close the bid among themselves. This order was challenged by the petitioners. The counsel for the respondent contented that the appeal before the Supreme Court was not maintainable under Section 10(1) of the Ordinance and if the petitioners were aggrieved then they should have filed an Intra-Court appeal under Section 10(2) thereof. After referring to the case law, a two-Member Bench of this Court declared that an appeal against any order or decision in proceedings where the company has already been ordered to be wound up, including the winding up order, lies before the Supreme Court under Section 10(1) supra. The relevant extracts of the noted judgment are reproduced hereinbelow for ease of reference:- “9. A casual reading of section 10(1) of Ordinance, 1984 gives an impression that it pertains to the order of winding up alone which is appealable before the Supreme Court. Had it been the intention of Legislature, it could have conveniently used singular term of winding up, to the effect that, any judgment whereby the Company is ordered to be wound up shall be appealable before the Supreme Court in the manner and under the conditions already described. Contrary to the use of single term, the use of multiples like “order”, “decisions” or “judgement” certainly covers a wider ambit and point to a scenario where different types of orders, not necessarily of winding up, might be challenged in appeal. 10. Another important characteristic of this subsection is the use of words “where the Company ordered to be wound up”. These terms visualize the passage of any “order” or “decision” passed or made at a time when the Company has already been wound up. Had the Legislature an intention to make a mere reference to an order or decision passed or made during the pendency of a winding up proceedings, it could have used the words “where the Company is sought to be wound up” instead of the words “where the Company C.A. No.1563/2014 etc. -: 11 :- is ordered to be wound up”. So it includes any order passed after the winding up order. The wisdom is apparent because after the winding of [sic] order, the Legislature did not seem to have intended to prolong the matters by allowing an intermediary remedy of Intra-Court Appeal. 11. We would, therefore, conclude and hold that section 10(1) includes the winding up order as well as any order or decision in proceedings where the Company has already been ordered to be wound up. Any order passed or decision made by Company Judge after the winding up of Company, shall be appealable before the Supreme Court in the manner and under the conditions described in the subsection itself. AS the impugned order is passed after winding up proceedings, the petition before this Court, [sic] is maintainable. 12. This Court in case of S. Muhammad Din and Sons case 1992 SCMR 1795 had held that appeal under section 10 is competent only where an order or decision has been made in proceedings when the Company has already been ordered to be wound up. The terms to he appreciated are any "proceedings" when the Company has already been ordered to he wound up. It gives a clear indication that once a company has already been ordered to he wound up, any order passed or decision made in proceedings thereafter can be challenged before the Supreme Court under section 10(1) of Ordinance, 1984. Though not referred to yet the principle aforesaid was followed by Sindh High Court in Muhammad Farooq's case PLD 1999 Kar. 246 holding a view that once a winding up order has been passed, all orders passed in proceedings thereafter shall fall under section 10(1) of the Ordinance and be appealable before the Supreme Court.” [Emphasis supplied] 8. In the case of Diamond Industries (supra) the petitioner company was issued a show cause notice by the Securities and Exchange Commission of Pakistan (SECP) as to why an Inspector should not be appointed to investigate the affairs of the Company as it showed losses. C.A. No.1563/2014 etc. -: 12 :- After hearing the Company, an order for appointing the Inspector was passed by the SECP. This order was challenged before the Appellate Bench of the SECP and was set aside. Later on, another show cause notice for the appointment of Inspector on grounds of deviation from memorandum of association, non-payment of return to shareholders, etc. was made which was rejected by the Appellate Bench of the SECP but maintained by the Company Judge of Peshawar High Court. A three-Member Bench of this Court dismissed the petition and declared as follows:- “4. In the case of Brother Steel Mills Ltd. and others v. Mian Ilyas Miraj and 14 others (PLD 1996 SC 543) and an unreported judgment in the case of Ch. Muhammad Hussain v. Pakistan Industries and Credit Investment Corporation Ltd. and others C.M.A. No. 943 of 2002 in C.A. No. 648 of 2002, decided on 25-7-2002), this Court has held that all orders passed under subsection (2) of section 10 of the Ordinance in exercise of original civil jurisdiction of the High Court as per provisions of section 15 of the Code of Civil Procedure (Amendment) Ordinance (X of 1980) are appealable before a Division Bench of the High Court. 5. In the case in hand identical questions of law and fact are involved. The impugned order being an interlocutory in nature is governed by the aforesaid provisions of law against which an Intra-Court Appeal before a Division Bench is the only remedy.” [Emphasis supplied] 9. In the case of Hata Spinning Mills (supra), an appeal was filed before this Court under Section 10(1) of the Ordinance against the winding up order passed by the Company Judge. The respondent had brought a winding up petition before the Company Judge contending that the appellant Company has failed to pay its debt and the petition was granted. The appellant Company appealed against this order which was dismissed by a two-Member Bench of this Court while holding that “the C.A. No.1563/2014 etc. -: 13 :- opinion formed by learned Company Judge vide impugned judgment that it is just and equitable to wound up appellant company admits no interference in appeal by this Court.” In United Bank Limited’s case (supra), the appellant had extended a credit facility to a company which was later ordered to be wound up by the Company Judge. An order for the encashment of the bank guarantee was also made against which the appellant filed an appeal under Section 10(2) of the Ordinance in Karachi High Court which was dismissed and the order of the Company Judge was maintained. The appellant filed an appeal before this Court which was also dismissed by a three-Member Bench. However, there was no discussion regarding the scope of either Section 10(1) supra or 10(2) supra in the judgment. In the case of Glorex Textile Limited (supra), the respondents had filed a winding up petition against the appellant on ground that the appellant had failed to pay the due amounts. The Company Judge allowed the petition and an appeal against the winding up order filed before this Court was dismissed by a three-Member Bench. The case of Sindh Tech. Industries Limited (supra) involved an appeal against the order of the Company Judge who had ordered the winding up of the appellant company on the ground that it had failed to repay the amount of the loan to the respondent. The appellant company contended that the winding up petition was not maintainable as the service of statutory notice under Section 306 of the Ordinance was not met. The High Court had repelled the contentions and the appellant company approached this Court. However, a two-Member Bench of this Court dismissed the appeal stating that the appellant company had failed to repay the loan and the winding up was just and equitable. 10. In the case of Brother Steel Mills Limited (supra), a dispute arose amongst various families in the Ittefaq Group set-up and a memo of understanding was concluded between some of the families concerned for dividing the corporate assets of the Ittefaq Group. In respect of this settlement, respondents filed a. petition under Section 265(a)(ii) of C.A. No.1563/2014 etc. -: 14 :- the Ordinance before the Lahore High Court praying for direction to the Corporate Law Authority to appoint Inspector to investigate the affairs of the petitioner-company and to submit a report. The appellants opposed but the Company Judge accepted the petition and ordered investigation in the affairs of the petitioner-company by Inspectors to be appointed by the Corporate Law Authority. This judgment was challenged in the Intra Court Appeal. The respondents had also filed a petition under Section 290 of the Ordinance before the Company Judge of the Lahore High Court. During the pendency of the main petition under Section 290 of the Ordinance, respondents filed an application under Section 292 of the Ordinance praying that the management of the Company may be replaced by an impartial board/administrator. This application was granted and the management of the petitioner company was suspended/removed and Inspector already appointed was appointed as Administrator to act as Chief Executive of the Company and perform functions of the management. A five-Member Bench of this Court, while discussing issues of jurisdiction, declared with regards to Section 10 of the Ordinance as follows:- “In the facts of the present case, section 10(1) of the Ordinance cannot be pressed in service because one of the preconditions for its applicability is that the company should have been ordered to be wound up. If no order for winding up of the company has been passed, section 10(1) of the Ordinance will not be attracted…The provisions of appeal under section 483 of the Companies Act, 1956 are completely different, which provide for appeals from any order made or decision given "in the matter of the winding up of a company". In the Ordinance, section 10(1) clearly provides that appeal can be filed against judgment or order where the company has been ordered to be wound up which is not as wide as under the Companies Act, 1956. 5. The main question about maintainability of the appeals can be resolved by interpreting the provisions of law C.A. No.1563/2014 etc. -: 15 :- quoted above. The present case will be governed by section 10(2) of the Ordinance according to which except the cases mentioned in subsection (1), the appeal will lie in the "same manner" and "subject to the same conditions" under which appeals lie from any order or decision of the Court. This provision does not specify the forum in which the appeal is to be filed nor does it clearly state the conditions which will be attracted while challenging the order in appeal. It however, in clear terms states that the appeal will lie in the same way as appeal lies against an order of the Court. This provision confers a right of appeal against order and decision passed by the Company Judge in a case to which section 10(1) of the Ordinance does not apply. The words "manner" and "conditions" are comprehensive in meaning and wide in connotation to include the procedure to be followed in filing and hearing appeals, the period of limitation to be applied and the forum to which appeal would lie. It is by reference that provisions providing for filing appeal against an order of a Judge of the High Court passed in exercise of original civil jurisdiction are attracted…The first part of section 10(2) of the Ordinance confers a right to file appeal against any order or decision of the Company Judge. The forum, procedure, hearing and period of limitation for filing appeal have not been stated and will be regulated by such laws which apply to appeals filed against the order passed or decision made by a Single Judge of the Court.” [Emphasis supplied] 11. Finally the case of Muhammad Din (supra) involved reconstruction/reorganization of a company. The Company Judge had disallowed the company from rechecking the accounts with the bank and an appeal against that order was filed before this Court, a two-Member Bench of which found as follows:- “7. Contention of the learned counsel for the respondent is valid as an appeal against an order of a learned company Judge is only competent where an order or decision has been made in proceedings when the company has already been C.A. No.1563/2014 etc. -: 16 :- ordered to be wound up. In the case in hand there is no order of winding up of the company. The application out of which these proceedings arise was filed for reconstruction/re- organization. For such purpose provision is provided in Part IX whereas the provision for winding up is in the Part XI of the aforementioned Ordinance, 1984. The two sets of provisions are separate and distinct. Therefore, appeal against the impugned order is not competent. Hence, it is dismissed.” 12. There are various conflicting judgments on the interpretation of Sections 10(1) and (2) of the Ordinance, including judgments of this Court. At the risk of repetition, in Ibrahim Shamsi’s case (supra), a two-Member Bench of this Court held that Section 10(1) of the Ordinance applies to a winding up order as well as any order or decision made in the winding up proceedings after the Company has been ordered to be wound up. Thus, a winding up order as well as any order passed or decision made by the company judge after the winding up of a company shall be appealable before the Supreme Court instead of the Division Bench of the High Court. In Kamaluddin Qureshi’s case (supra), a three-Member Bench of this Court held that Section 10(1) of the Ordinance applies only to a winding up order. Thus, only an order passed by the company judge for the winding up of a company shall be appealable before the Supreme Court. All other orders passed in the winding up proceedings whether before or after the winding up order shall be appealable before the Division Bench of the High Court under Section 10(2) of the Ordinance read with Section 3 of the Law Reforms Ordinance, 1972 and Section 15 of the Code of Civil Procedure (Amendment) Ordinance, 1980. As Kamaluddin Qureshi’s case (supra) was decided by a bench larger than Ibrahim Shamsi’s case (supra) and is also later in time, the ratio of the former would have prevailed over the latter and accordingly, the instant appeal would not be maintainable before this Court and the proper forum for the adjudication of the appeal would be the Division Bench of the High Court. However, a larger Bench was created C.A. No.1563/2014 etc. -: 17 :- in order to re-consider the law on the subject and conclusively resolve the question posed. 13. A plain and simple reading of Section 10(1) of the Ordinance reinforces the decision of this Court in Ibrahim Shamsi’s case (supra). It is a settled principle of interpretation of statutes that the words of a statute are to be given their plain and ordinary meaning. The use of the words “where the company ordered to be wound up” in Section 10(1) visualizes the passage of any “order” or “decision” passed or made at a time when the company has already been wound up. Contrary to the use of single term, the use of multiples like “order”, “decision” or “judgment” certainly covers a wider ambit and point to a scenario where different types of orders, not necessarily of winding up, might be challenged in appeal. The wisdom is apparent because after the winding up order, the Legislature did not seem to have intended to prolong the matters by allowing an intermediary remedy of intra-court appeal. Thus, a plain and ordinary meaning of Section 10(1) of the Ordinance provides that it applies to a winding up order as well as any order or decision made in the winding up proceedings after a company has been ordered to be wound up. Resultantly, a winding up order as well as any order passed or decision made by the Company Judge after the winding up of a company should be appealable before the Supreme Court instead of the Division Bench of the High Court. Section 10(1) ibid refers to an appeal against “any” order, decision or judgment of the Court “where the company ordered to be wound up...” Two essential elements of Section 10(1) ibid are the use of the broad word “any” as qualifying “order, decision or judgment” and that such order, decision or judgment must have a nexus with “the company ordered to be wound up”. 14. Petitions for winding up were (prior to the Act) ordinarily filed under Section 305 of the Ordinance. Its opening line reads “A company may be wound up by the Court” and provides the several circumstances in C.A. No.1563/2014 etc. -: 18 :- which a company may be wound up. Section 314(1) of the Ordinance provides:- “314. Powers of Court on hearing petition.- (1) On hearing a winding up petition the Court may dismiss it with or without costs, or adjourn the hearing conditionally or unconditionally subject to the limitation imposed in section 9 or make any interim order, or an order for winding up the Company or any other order that it deems just; but the Court shall not refuse to make a winding up order on the ground only that the assets of the Company have been mortgaged to an amount equal to or in excess of those assets, or that the Company has no assets.” [Emphasis supplied] The emphasized portion indicates the making of “an order for winding up of the Company or any other order that it deems just”. Section 314(5) of the Ordinance is also relevant which read as follows:- “(5) Where the Court makes an order for the winding up of a Company, it shall forthwith cause intimation thereof to be sent to the official liquidator appointed by it and to the registrar.” [Emphasis supplied] The result of the above provisions and discussion is that Section 10(1) supra enables appeals to the Supreme Court against a winding up order as well as any order or decision made in the winding up proceedings after a company has been ordered to be wound up. Resultantly, a winding up order as well as any order passed or decision made by a Company Judge after the winding up of a company shall be appealable before the Supreme Court instead of the Division Bench of the High Court. The fact that the word “any” is used as opposed to “an order” would point to a broader legislative intent. Also, the specific Sections of the Ordinance dealing with the winding up of a company, some quoted above, use the C.A. No.1563/2014 etc. -: 19 :- language, without exception, “order” for the “winding up”. For Section 10(1) ibid to include not only an “order” for the winding up of a company but “any order” and not only “any order” but also “any decision or judgment” of the High Court suggests that the intention may have been to reach not only a winding up order but also post-winding up orders. 15. In light of the foregoing, we find that the ratio of the Ibrahim Shamsi’s case (supra) is good law, whereas that of Kamaluddin Qureshi’s case (supra) is not, the latter of which is hereby overturned. Having decided the question of maintainability in favour of the appellant, all these matters are hereby referred to a regular Bench which shall decide the same on merit in accordance with law. CHIEF JUSTICE JUDGE JUDGE JUDGE JUDGE Announced in open Court on 15.1.2019 at Islamabad Approved for reporting Waqas Naseer

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE FAISAL ARAB MR. JUSTICE MUNIB AKHTAR CIVIL APPEAL NO. 157-K OF 2016 & C.M.A. NO. 1865-K OF 2018 (On appeal against the judgment dated 04.10.2016 passed by the High Court of Sindh, Karachi in First Appeal No. 50/2000) Abdul Ghaffar Adamjee and others … Petitioners VERSUS National Investment Trust Limited and another … Respondents For the Petitioners: Mr. Arshad Mohsin Tayebaly, ASC Mr. K.A. Wahab, AOR For the Respondents: Mr. Muhammad Masood Khan, ASC Date of Hearing: 31.12.2018 JUDGMENT CMA NO. 1865-K/2018 For the reasons stated, this application is allowed and the order dated 24.12.2018 dismissing the main appeal for non- prosecution is recalled, which stands restored to its original number. We now proceed to hear the main appeal. CIVIL APPEAL NO. 157-K/2016 Faisal Arab, J.- National Investment Trust, the respondent No.1 herein, was one of the two major financial institutions which provided finance to Adamjee Polycrafts Limited, hereinafter referred to as ‘the company’, for setting up of its Polypropylene Film Manufacturing Plant in Hub Industrial Trading Estate, Lesbela, Balouchistan. The other financial institution was PICIC, which provided a long-term finance of Rs.95,000,000/-. Respondent No.1 provided a markup based short-term financial facility of Rs.22,500,000/- under an agreement of finance executed on 23.02.1988 repayable by 30.06.1990. The company made CIVIL PETITION NO. 157-K OF 2016 & C.M.A. NO. 1865-K OF 2018 2 certain repayments to respondent No.1 between 1990 and 1993 but failed to settle its account and a sum of Rs.18,500,000/- remained outstanding. After giving ample opportunities to the company to pay off its dues the respondent No.1 filed recovery suit in the banking court in the year 1996. Alongwith the company its sponsor directors were also sued as defendants No.2 to 4, who are appellants in this case. The manner in which recovery was sought from them was described in prayer clause ‘D’ of the plaint which reads “Judgment and Decree, jointly and severally, against Defendants No.2, 3 and 4, for the amount which is left unsatisfied after the sale of all the hypothecated machinery as well as the mortgaged land and buildings, described in para 8 above.” 2. The respondent No.1’s suit was decreed in the sum of Rs.18,500,000/- alongwith markup at the rate of 15% per annum on the basis of banking law then prevailing. Apart from the company, the decree was executable also against the appellants, who were treated as guarantors under Sponsors’ Undertaking executed contemporaneously with the agreement of finance. The appellants appealed before the Division Bench of the Sindh High Court which failed vide impugned judgment dated 04.10.2016. As the defence put forward by the appellants was not accepted by the appellate court as well, the appellants preferred this appeal with the leave of the court. 3. Learned counsel for the appellants argued that the impugned judgment is bad in law and facts as the courts below erred in treating appellants as guarantors on the basis of undertaking as their liability was that of indemnifiers and that too confined to what has been set out in clauses 1 to 4 and nothing more. He submitted that as the appellants neither committed any breach of clauses 1 to 4 of the undertaking nor it can be read as a guarantee towards financial obligation of the company under the agreement of finance dated 23.02.1988, therefore, both the courts below erred in ordering recovery of decretal amount from them. CIVIL PETITION NO. 157-K OF 2016 & C.M.A. NO. 1865-K OF 2018 3 4. Learned counsel for the respondent on the other hand argued that when the second recital and clauses 6 and 7 of the Sponsors’ Undertaking furnished by the appellants in their capacity as company’s sponsor directors is read in the context of Section 126 and Section 128 of the Contract Act, 1872 it comes out as a contract of guarantee, making the liability of the appellants co-extensive with that of the company. 5. It may be mentioned here that while recovery proceedings were pending, the company went into liquidation and as PICIC also had its substantial claim against the company, there is no likelihood that respondent No.1 could recover the decretal amount from the company. The respondent No.1 has, therefore, turned to the appellants for recovery in their capacity as guarantors under Sponsors’ Undertaking which they had executed. The appellants are resisting the recovery against them on the ground that their undertaking does not make them personally liable to pay any defaulted sum owed by the company. The crux of the matter revolves around the controversy as to whether the Sponsors’ Undertaking furnished by the appellants is a contract of guarantee and make them personally liable to settle the decretal amount on account of inability of the liquidated company to discharge its financial obligation under the Agreement of Finance dated 23.02.1988. The Sponsors’ Undertaking (portions of which considered relevant have been highlighted) reads as follows:- “SPONSORS’ UNDERTAKING We (1) Abdul Ghaffar Adamjee son of Late Zakaria Adamjee, residing at 9, Fatima Jinnah Road, Karachi. (2) Ms. Salma Adamjee wife of Abdul Gaffar Adamjee, residing at 9, Fatima Jinnah Road, Karachi and (3) Akbar Adamjee son of Abdul Gaffar Adamjee residing at 9, Fatima Jinnah Road, Karachi are sponsoring Directors of ADAMJEE POLYCRAFTS LIMITED, having its registered office at Adamjee House, I.I.Chundrigar Road, Karachi (hereinafter referred to as the “Company”); AND WHEREAS you have, on terms and conditions contained in the Investment Agreement dated 23-02-1988 made between yourselves and the Company, agreed to invest a sum of Rs.22.5 million (Rupees Twenty two point Five million) with the Company; CIVIL PETITION NO. 157-K OF 2016 & C.M.A. NO. 1865-K OF 2018 4 AND WHEREAS you have agreed to make the above investment on the condition, inter alia, that we furnish you this guarantee; NOW, THEREFORE, WE DO hereby agree, undertake and guarantee as follows: 1. The funds so made available to the company by us and such other funds as may be made available by the NIT shall be fully and honestly invested in the project as required by you. 2. The Company shall, to your satisfaction, implement the project within the prescribed time-table or within such time as may be fixed by you and keep you fully posted/informed of the progress of the project as may be required by you. We also agree not to change the nature/score/capacity of the project without your prior written permission. 3. We shall engage a cause the Company to engage suitable technical personnel and consultants/advisers for the erection of its plant and machinery and employ professionals, technicians, financial and sales executives of the Company for carrying out its business. 4. We shall not sell/transfer/dispose of our shareholdings in the Company and/or transfer the management of the Company/Project without your prior written consent. 5. Any breach of this undertaking shall be deemed to be an event of default under the aforesaid Agreement and we shall be personally liable to all the monetary obligations, detriments, losses that may be sustained by you due to any breach of the covenants herein. 6. We shall indemnify and keep you always safe, harmless and indemnified. 7. Our obligations hereunder are joint and several and the same shall be binding on us until the investment made by you in the Company is fully satisfied and you notify the same to us. 6. The first recital of Sponsors’ Undertaking refers to the investment made by respondent No.1 in the company under the agreement of finance dated 23.02.1998 and the second recital states that respondent No.1 has agreed to make the investment on the condition that the appellants furnish this guarantee. Clause 6 of the undertaking stipulates that the appellants shall indemnify and keep respondent No.1 always safe, harmless and indemnified and clause 7 stipulates that appellants’ obligations hereunder are joint and several and binding on them until the investment made CIVIL PETITION NO. 157-K OF 2016 & C.M.A. NO. 1865-K OF 2018 5 by respondent No.1 in the company is fully satisfied. Reading clauses 6 and 7 of the Sponsors’ Undertaking together with its recitals what comes out is this: ‘respondent No.1 has agreed to make investment in the company under Investment Agreement dated 23.02.1988 on the condition that the sponsor directors of the company have jointly and severally committed themselves to keep respondent No.1 always safe, harmless and indemnified until the investment made by respondent No.1 in the company is fully satisfied’. From the text of the undertaking, it is clearly apparent that it was intended to further secure the finance by seeking personal undertaking from the appellants in case it no more remains possible for respondent No.1 to recover it from the company. It was for this reason that the appellants in terms of clauses 6 and 7 undertook that they would keep respondent No.1 indemnified until investment made in the company is fully satisfied. This very object which emerges from clauses 6 and 7 of the Sponsors’ Undertaking cannot be ignored by confining its scope only to the appellants’ commitments made in clauses 1 to 4. Hence it cannot be said that the appellants did not give personally assurance to respondent No.1 that in the event it becomes impossible for it to recover from the company, it can have recourse against them for the loss so incurred. We don’t see any other way respondent No.1 could remain safe, harmless and indemnified as committed under clauses 6 and 7 of the Sponsors’ Undertaking. 7. Sponsors’ Undertaking was executed by the appellants contemporaneously with the agreement of finance dated 23.02.1988 so it can be conveniently said that both the documents were part of the same scheme under which respondent No.1 provided finance to the company. Should the object emerging from clauses 6 and 7 of the Sponsors’ Undertaking be allowed to be frustrated merely because it contains certain other commitments in the form of clauses 1 to 4 which relate only to proper management and running of the company by the appellants? Parties draft agreements in many ways. While interpreting covenants of a document it is to be seen what was the main purpose and object which brought them to the table to sign it. CIVIL PETITION NO. 157-K OF 2016 & C.M.A. NO. 1865-K OF 2018 6 When the real purpose of executing a document becomes evident, then in what order various covenants are arranged cannot be made basis to frustrate it by excluding such covenants from its scope that matter the most. So only that interpretation is to be adopted that serves and not vitiates the main purpose with which the document was executed. The respondent No.1 had no interest of its own in the company other than recovery of its financial investment along-with markup and this was the main object behind incorporating clauses 6 and 7 in the Sponsor’s Undertaking so as to make the appellants personally liable in case the company is unable to settle the account under the Investment Agreement dated 23.02.1998. When the Sponsors’ Undertaking is read in it’s entirely, the principal object to seek its execution from the appellants, in their capacity as sponsor directors of the company could only be this and nothing else. 8. As to the question whether the Sponsors’ Undertaking is a contract of guarantee or indemnity, a guarantor under a contract of guarantee takes upon himself the responsibility to fulfill a promise or discharge a liability of a third person and by virtue of Section 128 of the Contract Act his liability becomes co-extensive with that of third person unless the parties provide otherwise. Section 124 of the Contract Act defines contract of indemnity as “A contract by which one party promises to save the other from loss caused to him by the conduct of the promisor himself or by the conduct of any other person…” Hence in a contract of indemnity the indemnifier undertakes to save a party from the loss caused to it either by his own conduct or by the conduct of a third party who has made certain commitments to the other party, hence he becomes liable only when the loss caused to the other party is finally determined and all possible recoveries have been effected from the party that caused the loss. The obligation of an indemnifier is therefore not co-extensive with that of the principal debtor and comes into existence only when it no more remains legally possible to recover from the principal debtor. From the contents of clauses 6 and 7 of Sponsors’ Undertaking also it is evident that the liability of the appellants was not made co- CIVIL PETITION NO. 157-K OF 2016 & C.M.A. NO. 1865-K OF 2018 7 extensive with the company, hence it is a contract of indemnity. This is exactly what the respondent No.1 considered the appellants to be when in the prayer clause ‘D’ of the plaint it was stated “Judgment and Decree, jointly and severally, against Defendants No.2, 3 and 4, for the amount which is left unsatisfied after the sale of all the hypothecated machinery as well as the mortgaged land and buildings….” Clearly the appellants were sued in their capacity as indemnifiers and in such capacity recovery against them had to wait until all assets of the liquidated company were sold, which has already happened in the liquidation proceedings. In liquidation proceedings, the company has been wound-up and the sale proceeds of all its assets have apparently gone to settle PICIC’s claim and respondent No.1’s decree remains unsatisfied. The proper stage to initiate recovery against the appellants in their personal capacity as indemnifiers under the Sponsors’ Undertaking has thus matured. The learned counsel for the appellants too has considered Sponsors’ Undertaking to be a contract of indemnity but wants to confine its scope to clauses 1 to 4 only whereas the document does not stop there as it has three more clauses i.e. 5 to 7. The only avenue left for respondent No. 1 is to recover the loss from the appellants in their capacity as indemnifiers under Sponsors’ Undertaking. This the respondent No.1 can now do by seeking execution of its decree. This appeal, therefore, fails and is hereby dismissed. JUDGE JUDGE JUDGE (For the reasons given in my judgment, I respectfully dissent) Karachi, the Announced on ______________ at _______________. Approved For Reporting Khurram CIVIL PETITION NO. 157-K OF 2016 & C.M.A. NO. 1865-K OF 2018 8 Munib Akhtar, J.- I have had the advantage of reading in draft the judgment proposed to be delivered by my learned brother, Faisal Arab, J., with whom my learned brother Mushir Alam, J. is in agreement. It is with regret that I find myself unable to take the view as finds favor with the majority. For the reasons given below, I would have allowed this appeal. 2. The appellants are aggrieved by the dismissal of their appeal by a learned Division Bench of the High Court. The impugned judgment is reported as Adamjee Polycraft Ltd. and others v. National Investment Trust Ltd. 2017 CLD 380. That appeal arose out of judgment and decree of the learned Banking Court made in favor of the present respondent, in a banking suit filed by the latter under the finances/loans recovery law. The defendants in the suit were the company to which the finance was provided (in terms of an investment agreement dated 23.02.1988; herein after “the Agreement”) and the present appellants, who were its directors. The company defaulted in repaying the finance (there being only part payment), which led to the filing of the banking suit. (The capacity in which the appellants were sued will be stated shortly.) Two issues were framed and found against the defendants; the suit was accordingly decreed. Both the company and the present appellants appealed against the judgment and decree, which was dismissed by means of the impugned judgment. The company has gone into liquidation, and is not an appellant before us. It is on the record only as a pro forma respondent, and the matter has attained finality against it. The appellants contend that the suit against them ought to have been dismissed, as their liability was only on the basis of a “Sponsors’ Undertaking” (“Undertaking”) executed by them. It is their case that no occasion arose for the respondent to make a claim in terms thereof, which according to them was only in the nature of an indemnity. The respondent’s case is that the Undertaking, on its true interpretation and application, was a guarantee by which, inter alia, the appellants guaranteed repayment of all unpaid amounts due from the company. Since there was a default in payment the appellants were liable in terms of the Undertaking. The suit was rightly decreed against them (along with the company). Leave to appeal was granted in this Court vide order dated 13.12.2016 to, inter alia, consider whether the Undertaking was in the nature of a guarantee or otherwise. 3. The Undertaking has already been set out in full in the majority judgment and therefore need not be reproduced here. It was in form addressed to the respondent (the “you” therein). It may be noted that the Undertaking was CIVIL PETITION NO. 157-K OF 2016 & C.M.A. NO. 1865-K OF 2018 9 executed by the appellants in their individual capacities as sponsor directors. It then went on to state as follows: “We, ADAMJEE POLYCRAFTS LIMITED shall, to your satisfaction perform our part of the obligation as envisaged herein above.” This statement was followed by an execution for and on behalf of the company. 4. The learned Banking Court framed an issue specifically with regard to the appellants’ liability, and held them liable for the outstanding and unpaid amount of the finance by reason of clause 6 of the Undertaking. 5. The learned High Court took a different approach. In the judgment, the learned Division Bench reproduced various clauses from the Agreement and also from the Undertaking (pp. 386-389). However (and pertinently), clauses 1 to 4 of the Undertaking were not reproduced. Reference was made to ss. 126 and 128 of the Contract Act, 1872. It was observed that the appellants had become sureties, while the company was the principal debtor and the respondent a creditor (pg. 389, para 11). The learned Division Bench held that “it is an undeniable fact that the Sponsors’ Agreement is a part and parcel of the Investment Agreement dated 23.2.1988 since it was a mandatory condition as per the agreement entered into between the [company] and the respondent that the company has to furnish an undertaking from all the directors of the company with regard to providing of the funds in the project and for other necessary formalities” (pg. 390, para 13; emphasis supplied). It is clear that for the learned Division Bench its conclusion that the Undertaking was an integral part of the Agreement was vital for holding the appellants liable to the respondent. Thus, it was observed as follows (pg. 391; emphasis supplied): “14. A perusal of the Sponsor Undertaking clearly stipulates that the investment by the respondent would only become effective when the sponsors furnish[] guarantee to the company in the shape of Sponsors Undertaking. In the said agreement it has also been provided that the said sponsors/guarantors in view of the specific condition imposed by the respondent with regard to the investment made by them have agreed, undertaken and thereafter given the guarantee with regard to the various clauses of the Sponsors Undertaking. Now if the company has defaulted a question would arise who will bear the liability of the respondent to clear out the same? In our view, in case of default made by the company which was the principal debtor definitely the sponsors/guarantors becoming sureties due to the implication of the agreement have to payout those liabilities of the principal debtor in accordance with the terms of the CIVIL PETITION NO. 157-K OF 2016 & C.M.A. NO. 1865-K OF 2018 10 contract entered between them and the respondent. We are fully conscious of the fact that in determining the liability, so far as sponsors/guarantors are concerned, the terms of the contract entered between the parties is of prime importance and each case is to be adjudged by looking to the peculiar facts and circumstances of the agreement entered between the parties. In the present case, as noted above, in our view since the Sponsor Undertaking being an integral part of the main agreement could not be read in isolation or it could be said that the terms of the Sponsor Undertaking entered between the parties is limited to the extent of the clauses of the said undertaking only. In view of the facts and circumstances of the case and after reading the agreement and the sponsor agreement this argument is not found to be plausible. 15. In our view the Sponsor Undertaking, being an integral part of the agreement, has to be read in conjunction with the agreement entered between the Appellant No.1 and the respondent and the Appellants Nos.2 to 4 cannot absolve themselves from the liability accruing and arising on the Appellant No.1 to be the liability of Appellant No.1 only as the Appellants Nos.2 to 4 in our view are co-extensively liable to payout the liability of the Appellant No.1….” 6. Learned counsel for the appellants submitted that both the learned Banking Court and the learned High Court erred materially in concluding that the appellants were liable to the respondent. It was submitted that the appellants’ liability was only as set out in the Undertaking, and not otherwise. That liability was limited to the obligations set out in clauses 1 to 4. Learned counsel submitted that no evidence was led before the learned Banking Court that the appellants had been in breach of those obligations. Thus, no occasion had ever arisen for the respondent to invoke the Undertaking. The appellants had been wrongly sued, and the suit erroneously decreed against them. As to the nature of the Undertaking, learned counsel submitted that it was, on the face of it, an indemnity and not a guarantee. Reference was made to clause 6. Insofar as the recitals of the Undertaking were concerned, where the term “guarantee” was used, learned counsel submitted that in terms of well settled principles of interpretation of deeds and contracts, the recitals could not override the substantive clauses nor used to interpret or supplement the latter when there was no ambiguity or uncertainty regarding them. That, it was submitted, was the position with the Undertaking. The appellants’ liability was spelt out in clear and categorical terms. Reliance was placed on State Bank of India v. Mula Sahakari Sakhar Karkhana Ltd. AIR 2007 SC 2361, both to show the distinction between an indemnity and a guarantee and the relevant rules regarding interpretation of contracts. It was prayed that the appeal be allowed. 7. Learned counsel for the respondent strongly opposed the appeal and prayed for its dismissal. It was submitted that the appellants’ liability to make CIVIL PETITION NO. 157-K OF 2016 & C.M.A. NO. 1865-K OF 2018 11 payment on the company’s default was clear. A proper reading of the Undertaking established unequivocally that it was a contract of guarantee and not, as claimed, an indemnity. In this regard, it was submitted that reliance could be placed on the recitals, where the obligation was clearly stated to be a “guarantee”. Without prejudice to this submission, learned counsel submitted that clause 6 was in any case sufficient to establish the appellants’ liability. Reliance was also placed on clause 7 and it was emphasized that it expressly provided for the continuing joint and several liability of the appellants till such time as the respondent was repaid in full. In support of his submissions learned counsel also relied on certain case law, being the following decisions of this Court: State Engineering Corporation Ltd. v. National Development Finance Corporation 2006 SCMR 619 (leave refusing order), Rafique Hazquel Masih v. Bank Alfalah Ltd. and others 2005 SCMR 72 (leave refusing order), Shipyard K. Damen International v. Karachi Shipyard Engineering Works Ltd. PLD 2003 SC 191 (leave refusing order) and United Bank Ltd. v. Pakistan Industrial Credit and Investment Corporation Ltd. and another 2002 CLD 1781. A judgment of the Lahore High Court, Ch. Muhammad Sadiq v. Small Business Finance Corporation and others 2005 CLD 1680, was also relied upon. 8. We heard learned counsel as above and considered the record and case law relied upon. The rules of interpretation in relation to contracts, as presently relevant, are well established. For a conspectus reference may be conveniently be made to House Building Finance Corporation v. Shahinshah Hamayun Cooperative House Building Society and others 1992 SCMR 19, where it was held as follows (pp. 27-29): “9. While interpreting the terms of contract the Court has to first ascertain the intention of the parties…. 10. The contract has to be construed strictly and literally without deviating or implying anything which is not supported by the intention of the parties and the language of the document. It is a sultry principle of consideration of document that nothing can be implied in a contract which is inconsistent with its expressed terms. In West Pakistan Industrial Development Corporation, Karachi, v. Aziz Qureshi PLD 1973 SC 222, it was held that a stipulation not expressed in a written contract should not be implied merely because the Court thinks that it would be a reasonable thing to imply it. Such an implication can be made only on consideration of the terms of the contract in a reasonable manner and if the Court is satisfied that it should necessarily have been intended by the parties when the contract was made…. 11. The main purpose of construction of terms of a written agreement is to find out the intention of the parties to the agreement. By looking to the CIVIL PETITION NO. 157-K OF 2016 & C.M.A. NO. 1865-K OF 2018 12 words used one has to construe the intention which has persuaded the parties to enter into the agreement…. In construing the deeds the words are to be taken in their literal plain and ordinary meaning. Where the plain and ordinary meaning may lead to inconsistency with other expressions used in the document or absurdity then such plain and ordinary meaning can be modified to avoid absurdity and inconsistency because the law favours to save a deed, if possible. In order to avoid inconsistency and absurdity resulting from plain and ordinary construction the Courts are always anxious to adopt a reasonable construction by which the intention of the parties can be spelt out…. … [I]t is clear that the intention of the parties has to be collected from the document as a whole and every part of the deed should be examined and read together….” In addition to the above, there is another rule that must be kept in mind, which is that a contract is to be read contra proferentem, i.e., when there is any doubt or ambiguity as regards the meaning of it or any words used therein, it will be construed against the person who puts it forward. 9. In my view, when the Undertaking is read in light of the foregoing principles, it is clear that the principal obligation was as set out in clause 5 thereof. That clause can be regarded as having two parts. The first part made any breach of the Undertaking an event of default under the Agreement. Now, the appellants were not party to the Agreement. However, as noted, the company also executed the Undertaking, thereby agreeing to perform its obligation “as envisaged herein above”. Thus, the first part of clause 5 became an additional event of default under the Agreement and any breach thereof entitled the respondent (under clause 6.01 of the latter) to, inter alia, demand immediate payment of the finance provided. This was of course without derogation of the events of default already specified in the Agreement. This was the consequence insofar as the company was concerned. As regards the appellants, their obligation was contained in the second part of clause 5. That made them “personally liable to all the monetary obligations, detriments, losses that may be sustained by you due to any breach of the covenants herein” (emphasis supplied). The plain meaning of these words is that the liability of the appellants as regards the monetary losses etc. suffered by the respondent was conditional upon, and limited to, such being sustained on account of any breach of the covenants contained in the Undertaking. Those covenants were contained in clauses 1 to 4. None of these clauses contained any obligation to make payment to the respondent if the company failed to repay the finance or any part thereof. As correctly submitted by learned counsel for the appellants, the evidence led at the trial did not show any breach at all of the said CIVIL PETITION NO. 157-K OF 2016 & C.M.A. NO. 1865-K OF 2018 13 clauses. It follows that insofar as both the appellants and the company were concerned, their obligation and liability under clause 5 was never actualized. There was no (deemed) event of default under the Undertaking as would, under the Agreement, have allowed the respondent to demand immediate repayment of the finance from the company, nor were there any monetary obligations, detriments etc incurred or suffered by the respondent (on account of the breach of clauses 1 to 4) as would make the appellants liable to it. 10. It is important to keep in mind that clause 5 had two distinct consequences, one for the company and the other for the appellants. While both were linked to clauses 1 to 4, they were separate from each other. For the company a breach of any of the said obligations resulted in there being an event of default entitling the respondent to demand immediate repayment of the finance. For the appellants such breach would make them liable to the respondent for detriments, losses etc sustained by it on account thereof. However, there was no intermingling of the consequences. More precisely, a nonpayment of any amount due from the company to the respondent did not make the appellants liable for the same in terms of clause 5. Thus, on the facts as established at the trial, clause 5 could not have been invoked against the appellants, either directly or even indirectly by way of an event of default (deemed or otherwise) by the company under the Agreement. 11. Clause 5 being found inapplicable, it is necessary to consider clause 6. The obligation contained therein was, in my view, an indemnity. This was what the clause said, on the face of it. But, and this is the crucial question, an indemnity against what? Clause 6 was itself silent on this: it simply said that the appellants would keep the company indemnified. Section 124 of the Contract Act speaks of the promise to indemnify saving the indemnity-holder (here the respondent) “from loss caused to him by the conduct of the promisor himself, or by the conduct of any other person”. Thus, clause 6 could have applied in relation to either the appellants’ conduct or that of the company (or both). However, neither this aspect, nor the conduct against which the respondent was indemnified, were specified therein. In other words, the clause was ambiguous and uncertain. Learned counsel for the appellants submitted that the clause indemnified the respondent against any loss suffered by it on account of any breach by the appellants of their obligations under clauses 1 to 4, and no more. With respect, I am unable to agree. That would reduce the clause to redundancy and mere surplusage since clause 5 already expressly secured the respondent as regards the first four clauses. The CIVIL PETITION NO. 157-K OF 2016 & C.M.A. NO. 1865-K OF 2018 14 indemnity granted in terms of clause 6 had to cover contingencies, situations, acts and/or omissions (i.e., conduct) beyond those identified in clauses 1 to 4. The question is: what were those contingencies and situations? 12. The answer that learned counsel for the respondent would undoubtedly give to the question just posed is that, regardless of whatever the full scope of the indemnity was, it certainly covered the defaulted amount due from the company. That was the conclusion that, in effect, found favor with the learned Banking Court. In support of such a conclusion could be marshaled the recitals contained in the Undertaking to which, arguably, resort could be had to resolve the uncertainty and ambiguity regarding clause 6. In this regard the third recital would be relevant, which provided that the finance was being granted the company on condition that the appellants gave “this guarantee”. Now clearly the recital could not affect the legal nature of the substantive provision and, as it were, “convert” the indemnity contained in clause 6 into a guarantee. However, it could resolve the uncertainty and ambiguity, and assist in establishing that the scope of the indemnity did indeed cover any defaulted amount due from the company. Would this be a proper reading and application of clause 6? It must be kept in mind that since the clause was uncertain and ambiguous the contra proferentem rule would also be applicable here. As was confirmed by learned counsel for the respondent on a specific query from the Court, the Undertaking was in form and language as determined by the respondent itself. The clause would therefore have to be read against the respondent. During the course of his submissions learned counsel for the appellants drew attention to the invariable practice adopted by financial institutions when giving finance, of taking what are known as “personal guarantees” from the directors or partners of the concern. Such guarantees clearly and expressly provide for the directors’ liability for any unpaid or defaulted amount. Learned counsel submitted that had that been the intent of the parties, the respondent could easily have obtained such guarantees from the appellants. Alternatively, such a liability could have been expressly spelt out in the manner of clauses 1 to 4. However, the respondent chose not to adopt any such course. It was content to provide for, and obtain, an indemnity as given in clause 6. The respondent could not thereafter be allowed to improve its position and bring within the scope of the said clause what would, in effect, be a guarantee. 13. The competing positions just noted are not easy to resolve. The principles of interpretation relevant for present purposes have been set out above. After a careful consideration of the record, in my view the balance must tilt in favor of CIVIL PETITION NO. 157-K OF 2016 & C.M.A. NO. 1865-K OF 2018 15 the appellants and against the respondent. In the end, the contra proferentem rule ought to be regarded as prevailing. As was said in the Supreme Court of Canada in Co-operators Life Insurance Co. v. Gibbons 2009 SCC 59: “Whoever holds the pen creates the ambiguity and must live with the consequences” (para 25). And in Tam Wing Chuen v. Bank of Credit and Commerce Hong Kong Ltd [1996] UKPC 69, the Privy Council said as follows: “…the basis of the contra proferentem principle is that the person who puts forward the wording of a proposed agreement may be assumed to have looked after his own interests, so that if words leave room for doubt about whether he is intended to have a particular benefit there is reason to suppose that he is not.” Clause 6 was ambiguous and uncertain. That was a consequence of the respondent’s own drafting. It must now live with that. If it had wanted to impose a liability on the appellants regarding payment of any amount defaulted by the company it could easily have done so, either by inserting appropriate language in the Undertaking or by obtaining personal guarantees from them. Neither course was adopted. The parties must be held to the bargain as struck. It would be inappropriate for the Court to intervene and alter that bargain, and read into clause 6 an obligation simply because it would be convenient, reasonable or commercially sensible to do so. This is all the more so when the terms of the Undertaking were determined and settled by the respondent. As noted by this Court in the aforementioned judgment (see para 8 above), something ought not to be read or implied into a contract simply because it appears to be reasonable to do so. In the Privy Council decision cited above, the Board also had this to say: “Consistency with a liability which could have been expressed is no ground for imposing a liability which was not expressed”. Clause 6 was ambiguous, and that uncertainty left its scope indeterminate. It is not for the Court to find ways to breathe life into the provision so as to enable the respondent to look to the appellants in addition to the company for payment of any amounts defaulted by the latter. All that can safely be said of the clause is that it indemnified the respondent against any loss suffered by it that could be directly attributable to conduct on the part of the appellants, over and above the contingencies and situations particularized in clauses 1 to 4. But that is not the situation with regard to the defaulted amount. Certainly, as a bare perusal of the plaint shows, the respondent did not plead its case against the appellants in such terms. Clause 6 could not therefore be invoked and applied in the manner as sought. With respect, the learned Banking Court erred materially in finding liability in terms thereof, CIVIL PETITION NO. 157-K OF 2016 & C.M.A. NO. 1865-K OF 2018 16 and the submissions made with regard thereto by learned counsel for the respondent cannot also, with respect, be accepted. 14. I turn to consider clause 7, on which also reliance was placed by learned counsel for the respondent. With respect, the reliance was misconceived. Clause 7 created no independent or substantive obligation. Its effect was procedural: it made clear that the liability of the appellants was joint and several. As is well known, when there is joint liability, each of the parties is liable for the full amount of the claim. Where the liability is several each bears only his own share of the burden of the claim, and is liable accordingly. As here relevant, the effect of joint and several liability is the same as liability that is joint. Thus, clause 7 enabled the respondent to (at its option) sue any one, some or all of the appellants, as it chose, for the full amount of its claim. However, that claim had to arise in terms of the other clauses of the Undertaking. Clause 7 did not create or add to that liability. Indeed, this is made clear by the opening words of the clause, which tied the joint and several liability to the appellants’ obligations “hereunder”. Furthermore, the reference at the end of the clause, to the appellants remaining liable till such time as the respondent received full satisfaction of its claims against the company, was only as regards the inter-se nature of their liability, i.e., that it would remain joint and several. 15. This brings me to the impugned judgment. As noted above, the learned Division Bench reached two conclusions. Firstly, it held that the Undertaking was a contract of guarantee and the appellants were liable as sureties. Secondly, the Undertaking was regarded as “part and parcel” or an “integral part” of the Agreement. With respect, I am unable to agree with either conclusion. The Undertaking and the Agreement were obviously part of the same transaction, but only in the sense of relating to the finance that the respondent proposed to give to the company. The Undertaking was not in any legal sense (and certainly none as presently relevant) “part” of the Agreement. Equally, the Undertaking had to be construed and applied on its own terms. It was not a guarantee within the meaning of s. 126 and, with respect, the learned Division Bench erred materially in so concluding. In this context, the learned High Court appears to have been swayed by the fact that the Agreement contained an express requirement that the sponsors give an undertaking. However, there is a clear distinction between the obligation to give an undertaking, and the terms thereof. The respondent’s obligation to disburse the finance under the Agreement was, inter alia, conditional upon the appellants giving the undertaking. But that did not make the Undertaking a part of CIVIL PETITION NO. 157-K OF 2016 & C.M.A. NO. 1865-K OF 2018 17 the Agreement, nor could it affect the legal nature and the proper construction and application of the former. That depended on the actual terms of, and language used in, the Undertaking itself. The approach taken by the learned High Court cannot therefore be sustained. 16. The cases relied upon by learned counsel for the respondent do not require detailed consideration since they all involved instruments that were admittedly guarantees. No question of the nature as raised here was in issue in the cited judgments. They are clearly distinguishable. 17. For the foregoing reasons, I would have allowed this appeal and, insofar as it relates to the appellants, have set aside the impugned judgment. I would have, likewise, varied the judgment and decree of the learned Banking Court and dismissed the respondent’s suit against the appellants. Judge CIVIL PETITION NO. 157-K OF 2016 & C.M.A. NO. 1865-K OF 2018 18 ORDER OF THE COURT By majority of 2 to 1 (Munib Akhtar, J dissenting), this appeal is dismissed and it is held that the Sponsors’ Undertaking is clearly a contract of indemnity and the sponsor directors are liable for any amount that is not recoverable from the company under agreement of finance dated 23.02.1988. JUDGE JUDGE JUDGE Announced on 03rd of April, 2019 at Islamabad.

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE MUSHIR ALAM MR. JUSTICE SAJJAD ALI SHAH CIVIL APPEALS NO.1583 TO 1598 OF 2014, 970 AND 971 OF 2013, 4, 5, 606 AND 1152 OF 2015 AND CIVIL PETITION NO.2154-L OF 2014 AND CIVIL MISC. APPLICATION NO.484-K OF 2014 IN CIVIL APPEAL NO.1598 OF 2014 (Against the judgments dated 4.8.2014, 29.10.2010, 3.12.2014, 18.3.2015, 9.6.2015 and 17.4.2014 of the High Court of Sindh, Karachi/Islamabad High Court, Islamabad/Peshawar High Court, Peshawar/Lahore High Court, Lahore passed in C.Ps.No.D-304/2012, D-3195/2010, D-1762/2012, D-658/2012, D- 3530/2011, D-3196/2010, D-2948/2011, D-2947/2011, D-2701/2011, D- 2269/2013, D-2188/2011, D-1642/2012, D-1410/2010, D-4184/2012, D- 153/2012, D-1796/2010, D-2428/2010, W.P.No.4626/2014, 4628/2014, C.P.No.4514/2013, W.P.No.634/2015 and R.A.No.93/2012) M/s Sui Southern Gas Company Ltd. In C.A.1583/2014 M/s Karachi Electric Supply Company In C.A.1584/2014 M/s Karachi Electric Supply Company In C.A.1585/2014 M/s Karachi Electric Ltd. In C.A.1586/2014 M/s Karachi Electric Ltd. In C.A.1587/2014 M/s Karachi Electric Ltd. In C.A.1588/2014 M/s Karachi Electric Supply Company In C.A.1589/2014 M/s Karachi Electric Supply Company In C.A.1590/2014 M/s Karachi Electric Supply Company In C.A.1591/2014 M/s Karachi Electric Ltd. In C.A.1592/2014 M/s Karachi Electric Supply Company In C.A.1593/2014 M/s Karachi Electric Ltd. In C.A.1594/2014 M/s Karachi Electric Ltd. In C.A.1595/2014 M/s Karachi Electric Supply Company In C.A.1596/2014 M/s Karachi Electric Supply Company In C.A.1597/2014 M/s Karachi Electric Supply Company In C.A.1598/2014 Shaheen Airport Services In C.A.970/2013 Shaheen Airport Services In C.A.971/2013 S.M.E. Bank Ltd. Islamabad In C.A.4/2015 S.M.E. Bank Ltd. Islamabad In C.A.5/2015 Muslim Commercial Bank Ltd. In C.A.606/2015 President Meezan Bank Ltd., Karachi etc. In C.A.1152/2015 Zohaib Arif, Traffic Loader, etc. In C.P.2154-L/2014 …Appellant(s)/Petitioner(s) VERSUS Federation of Pakistan etc. In C.A.1583/2014 National Industrial Relations Commission etc. In C.A.1584/2014 National Industrial Relations Commission etc. In C.A.1585/2014 Federation of Pakistan etc. In C.A.1586/2014 Federation of Pakistan etc. In C.A.1587/2014 National Industrial Relations Commission etc. In C.A.1588/2014 Federation of Pakistan etc. In C.A.1589/2014 National Industrial Relations Commission etc. In C.A.1590/2014 National Industrial Relations Commission etc. In C.A.1591/2014 National Industrial Relations Commission etc. In C.A.1592/2014 Civil Appeals No.1583 to 1598 of 2014 etc. -: 2 :- Federation of Pakistan etc. In C.A.1593/2014 Federation of Pakistan etc. In C.A.1594/2014 Federation of Pakistan etc. In C.A.1595/2014 Province of Sindh etc. In C.A.1596/2014 Federation of Pakistan etc. In C.A.1597/2014 Federation of Pakistan etc. In C.A.1598/2014 National Industrial Relations Commission etc. In C.A.970/2013 National Industrial Relations Commission etc. In C.A.971/2013 Full Bench, NIRC Islamabad etc. In C.A.4/2015 Full Bench, NIRC Islamabad etc. In C.A.5/2015 Tariq Zameer Siddiqui etc. In C.A.606/2015 Full Bench, NIRC Islamabad etc. In C.A.1152/2015 Manager, Shaheen Airport Services etc. In C.P.2154-L/2014 …Respondent(s) For the appellant(s): Mr. Khalid Anwar, Sr. ASC Mr. Nisar A. Mujahid, ASC Raja Abdul Ghafoor, AOR (In C.As.970 & 971/2013) Mr. Asim Iqbal, ASC (In C.A.1583/2014) Dr. Muhammad Farough Naseem, ASC (In C.As.1584, 1585, 1589, 1590, 1591, 1593, 1596, 1597 & 1598/2014) Nemo (In C.As.1586, 1587, 1588, 1592, 1594 & 1595/2014) Mr. Tariq Masood, Sr. ASC Syed Rifaqat Hussain Shah, AOR (In C.As.4 & 5/2015) Mr. Shahid Anwar Bajwa, ASC Mr. M. S. Khattak, AOR (In C.A.606/2015) Mr. Mehmood Abdul Ghani, ASC Mr. M. S. Khattak, AOR (In C.A.1152/2015) Mr. Khalid Ismail, ASC, Sr. ASC. (In C.P.2154-L/2014) For the respondent(s): Mr. M. Makhdoom Ali Khan, Sr. ASC (In C.As.1583, 1585, 1586, 1590 to 1595/2014) Mr. Rasheed A. Rizvi, Sr. ASC (In C.As.1584 & 1587/2014) Mr. Khalid Ismail, ASC (In C.As.4 & 5/2015, 970, 971/2013) Nemo (In C.A.970/2013) Mr. Amir Javed, ASC (In C.A.1152/2015) Mr. Salman Riaz Ch., ASC (In C.P.2154-L/2014) Civil Appeals No.1583 to 1598 of 2014 etc. -: 3 :- On Court’s notice: Mr. Muhammad Waqar Rana, Addl.A.G.P. Mr. Shehryar Qazi, Addl. AG Sindh Ms. Asma Hamid, Addl.A.G. Punjab Barrister Qasim Wadood, Addl.A.G. KPK Mr. Ayaz Swati, Addl.A.G. Balochistan Mr. M. Bilal Nadeem, Dy. Registrar, NIRC Syed Farrukh Hamayun, Joint Director Labour Deptt. Sindh Mr. Raja Maqsood, LO Labour Deptt. Punjab Mr. Mazhar Hussain, SO (Coordination) Ibd For intervener Mr. Saleem Khan, ASC Qazi Ahmed Naeem Qureshi, ASC Mr. Mehmood A. Sheikh, AOR Date of Hearing: 10.1.2018 JUDGMENT MIAN SAQIB NISAR, CJ.- These appeals with the leave of the Court vide orders dated 5.9.2013 (C.As. No.970 & 971 of 2013), 27.11.2014 (C.As. No.1583 to 1598 of 2014), 8.1.2015 (C.As. No.4 & 5 of 2015), 30.6.2015 (C.A. No.606 of 2015) and 4.11.2015 (C.A. No.1152 of 2015) and petition (C.P. No.2154-L of 2014) entail the common question of law thus are being disposed of through this common judgment. 2. The Islamic Republic of Pakistan is a democratic State (Federation) with its Federating Units (Provinces) and the Constitution of the Islamic Republic Pakistan, 1973 (Constitution) recognizes and creates a balance between the authority of the Federation and the autonomy of the Provinces, which recognition has been given an iron cladding by virtue of the Eighteenth Amendment, passed vide the Constitution (Eighteenth Amendment) Act, 2010. This Amendment to the Constitution has inter alia introduced a drastic enhancement in the legislative authority of the Provinces by deleting the Concurrent Legislative List (CLL), whereby previously both the Parliament and the Provincial legislatures could legislate on the subjects enumerated therein. The omission of the CLL, left only a single The Civil Appeals No.1583 to 1598 of 2014 etc. -: 4 :- the Constitution which exclusively list subjects that can be legislated upon by the Parliament alone, and by virtue of Article 142(c) of the Constitution any subject not enumerated in these two lists would subject to the Constitution, be within the legislative competence of the Provinces. Entry No. 26 of the erstwhile CLL contained the subjects of “welfare of labor; conditions of labor, provident funds; employer's liability and workmen's compensation, health insurance including invalidity pensions, old age pensions”, whereas, Entry 27 of the same dealt with the subjects of “trade unions; industrial and labor disputes”. Thus, prior to Eighteenth Amendment, the subject of labour and trade unions were in the domain of both the Parliament as well as the Provincial Assemblies. The labour laws enacted by the Parliament which were applicable in the Federation as well as the Federating Units. However, after the Eighteenth Amendment, the Parliament enacted the Industrial Relations Act 2012 (IRA 2012) which was challenged before the concerned High Courts (all the provincial High Courts as also the Islamabad High Court) mainly on the ground that the same is incompetently enacted by the Parliament as the subject of labour and the trade unions was no more in the legislative domain of the Parliament rather within the domain of the Provincial Assemblies. All the High Courts held (through judgments impugned herein as also other judgments) in favour of the constitutionality/validity of the IRA 2012. The factual background as also the questions of law raised in the impugned judgments are as follows: CA. 970/2013, against order of High Court of Sindh dated 29.10.2010 passed in C.P. No. 1796-D/2010 (2011 PLC 105) The learned High Court of Sindh was faced with the question whether Shaheen Air Port Services, is a charitable organization Civil Appeals No.1583 to 1598 of 2014 etc. -: 5 :- on the basis of being part of Shaheen Foundation which is a charitable trust set up by the Government of Pakistan, and thus whether a charitable organization fell within the ambit of the Industrial Relations Ordinance, 1969 and whether the same was operative in the interregnum of the lapse of the Industrial Relations Act 2008 on 30.4.2010 (as per Section 81(3) of the said Act) which question, the learned High Court answered in the affirmative, holding that the Industrial Relations Act 2008/Industrial Relations Ordinance 1969 being Federal law was applicable to Shaheen Airport Services as the same was operative in more than one Province and that Shaheen Airport Services did not qualify as a charitable organization in view of the activities that were entailed in the operation of its business. Another question involved therein was that after the Eighteenth Amendment, whereby Entries No.26 and 27 occurring in the CLL have been deleted, whether the Industrial Relations Ordinance, 1969 has become ultra vires of the Constitution for the reason that power to legislate on the subject no more existed with the Federal Legislature, the Court held that if a Trade Union has membership in more than one Provinces, merely because Entries No. 26 and 27 have been deleted, the jurisdiction of the Parliament to legislate in respect of situations services and items which fall within the inter Provincial trade, did not cease to exist. CA. 1583/2014, against order of High Court of Sindh dated 4.8.2014 passed in C.P. No.304-D/2012 (PLD 2014 K 553) The learned High Court while considering the question as to whether the IRA 2012 is ultra vires of the Constitution, held Civil Appeals No.1583 to 1598 of 2014 etc. -: 6 :- that while there is no doubt that the Eighteenth Amendment resulted in the deletion of the CLL, some room for concurrent legislation by both the Parliament and Provincial Assemblies was retained in Article 137 of the Constitution. Moreover, the IRA 2012 aimed at protecting the Fundamental Right of the citizens to form association provided under Article 17 and since Article 141 of the Constitution is clear that Provinces cannot legislate on matters beyond their territorial boundaries, it is imperative that the Federation steps into and protects such right of workers/employees who wish to form inter-provincial trade unions/associations, which resolve is further solidified with Articles 2A and 8 of the Constitution which emphasize the protection of the fundamental rights and relied upon the judgment reported as Pakistan Muslim League (N) v. The Federation of Pakistan (PLD 2007 SC 642) and the Indian judgment of Elel Hotels and Investment Ltd etc. v. Union of India (AIR 1990 SC 1664) that advocates a liberal construction of the constitutional legislative lists. Thus, holding the IRA intra vires of the Constitution, the learned High Court held that there is no overlap in the Provincial and Federal law since the IRA 2012 applies to inter-provincial establishments and its workers/employees, whereas the Sindh Industrial Relations Act, 2013 applies to establishments functioning only within the Province of Sindh. C.A. No.4/2015, against order of Islamabad High Court dated 3.12.2014 passed in W.P. No. 4626/2014 The dispute before the learned Islamabad High Court involved the employees of the SME Bank Limited, having its Branches throughout the Country i.e. in the Provinces of Punjab, Sindh, Civil Appeals No.1583 to 1598 of 2014 etc. -: 7 :- KPK and Balochistan, and also the Islamabad Capital Territory, who hired employees on contract basis who had thereafter been working for the said Bank for periods of 2 to 13 years and terminated them. The Bank contested the grievance notice of these employees contending that a fresh grievance notice should have been sent to the Bank under the Industrial Relations Act 2002 (the prevailing law at the time) which contention was not accepted by the learned High Court which finding is contested inter alia in the present application before this Court. C.A. No.606/2015, against order of High Court Sindh dated 18.3.2015 passed in CP No. 4154-D/2013 The Sindh Labour Appellate Tribunal directed that the grievance petition filed by the worker/employee ought to be heard by the NIRC constituted under the IRA 2012. Being aggrieved, the Bank challenged the said order through a petition under Article 199 of the Constitution on the ground that the grievance petition had to be filed with concerned Labour Court constituted under the relevant provincial statute i.e. the Sindh Industrial Relations Act, 2013 as the matter did not lie under the IRA 2012. The High Court held that since the IRA 2012 applied to the present case, the proper forum was NIRC under the said Act and not the Labour Court set up under provincial legislation. C.A. No.1152/2015, against order of Peshawar High Court dated 9.6.2015 passed in W.P. No.634-P/2015 (2016 PLC 279) The petitioner therein filed grievance petition before the Labour Court, Haripur which was remitted to NIRC, Peshawar Bench. During the proceedings the right of cross-examination was Civil Appeals No.1583 to 1598 of 2014 etc. -: 8 :- struck off, against which, the Bank filed a writ petition, however, in the meantime, NIRC accepted the grievance petition, consequently the writ petition was withdrawn. The appeal filed before the Full Bench of the NIRC Islamabad was dismissed and the said order was assailed through another writ petition. The learned Peshawar High Court held that the allegation that the grievance petition of the petitioner (in the High Court) was not maintainable before the NIRC was ill-founded, thereby declaring that the NIRC was competent and the IRA 2012 was applicable to the Meezan Bank Limited (which is a trans- provincial establishment). C.P. No.2154/2014, against order of Lahore High Court dated 17.11.2014 passed in Review Application No.93/2012 The grievance petition filed by the worker was dismissed by the Labour Court on the ground that the IRO is not applicable to Shaheen Airport Service. The appeal was allowed and the matter was remanded, but the learned Lahore High Court in a writ petition directed that as the identical issue was pending before this Court the Labour Court would not proceed further till the decision of that matter (CP No.11/2011). The review petition against that order was dismissed in light of the identical matter pending before this Court concerning the question as to whether, post the Eighteenth Amendment, the petitioner’s case would fall under the provincial law i.e. the Punjab Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 or the Federal law i.e. the Industrial Relations Ordinance 1969 or Industrial Relations Act, 2008. Civil Appeals No.1583 to 1598 of 2014 etc. -: 9 :- There are some other cases wherein the vires of the Industrial Relations Ordinance, 2011 (IRO 2011) and IRA 2012 have been considered by the High Courts but the same are not subject matter of these appeals/petition. The factual background as also the questions of law raised therein are as follows: Order of Lahore High Court dated 13.3.2012 passed in Writ Petitions No.24691 to 24695 of 2011 (2012 PLC 219) The NIRC through order dated 19.8.2011 directed to suspend the proceedings before the learned Labour Court. The vires of IRO 2011 was challenged through writ petitions on the ground that after abolition of CLL by means of Eighteenth Amendment, the subject of labour became the provincial subject and as such the President of Pakistan had no powers to promulgate the IRO 2011. On the basis of Entries No.3, 32 and 59 of Part-I of the FLL, the IRO 2011 was declared to be intra vires of the Constitution. Order of Islamabad High Court dated 27.6.2012 passed in Writ Petition No.3472/2011 The learned High Court declared the IRO 2011 to be intra vires of the Constitution on the basis of Entries No.3 and 32 of Part-I in the FLL. Order of High Court of Balochistan dated 26.6.2014 passed in C.P. No.226/2012 (2014 PLC 351) While considering the vires of the IRA 2012, the Court held that the IRA 2012 was properly enacted by the Parliament and is not ultra vires the Constitution, therefore, the IRO 2012, which was succeeded by the IRA 2012, cannot be categorized as being unconstitutional. Civil Appeals No.1583 to 1598 of 2014 etc. -: 10 :- 3. Heard the learned Counsel for the parties and perused the impugned judgments with their able assistance. For brevity, the respective arguments of the learned counsel for the parties are not cited separately, which shall be considered and dealt with hereinafter in our detailed discussion on the questions so formulated. From the pleadings/arguments of parties, the following common questions of law emerge for determination of this Court: (a) Whether the promulgation of the Industrial Relations Act, 2012 was ultra vires of the Constitution by reason of encroaching upon the legislative authority of the Provinces under Article 141-144 of the Constitution? (b) What is the extent of legislative competence of the federal and provincial legislatures and whether a provincial legislature has extra-territorial jurisdiction? (c) Whether there is an overlap in the legal remedies/forums available to the employees/workers who are employed in companies/corporations/institutions/establishments in more than one Province and what is the precise scope of jurisdiction of the National Industrial Relations Commission (NIRC) formed under Section 35 of the IRA 2012 for inter-provincial/trans-provincial labour and trade disputes? (d) What is the precise scope of jurisdiction of the National Industrial Relations Commission (NIRC) formed under Section 25 of the Industrial Relations Act 2008 in the Civil Appeals No.1583 to 1598 of 2014 etc. -: 11 :- interregnum till the IRA 2012 was not enacted for intra- provincial labour and trade disputes? 4. The case of the appellants/petitioners can be summarized as under: (1) That by means of the Eighteenth Amendment to the Constitution the CLL under which both the Parliament and Provincial Legislatures had jurisdiction to legislative on the subjects enumerated therein was abolished, as such, the matters previously covered under Entries No.26 and 27 thereof were no longer under the legislative domain of the Parliament, because under Article 142(c) of the Constitution, the legislative competence of the Federal Legislature is restricted only to the subjects that are enumerated in the Federal Legislative List (FLL) and the legislative competence of the Provincial Legislatures have exclusive jurisdiction to make laws on all residuary subjects. Further, under Article 144 (1) of the Constitution, the Parliament can also legislate on any matter not enumerated in the FLL only in the eventuality if one or more Provincial Assemblies pass a resolution to that effect. Therefore, prior to promulgation of the IRA 2012 it was necessary that all the four Provincial Assemblies should have passed the resolutions authorizing the Parliament to regulate by law the subjects that are covered by it, but the said provision of the Constitution was not resorted to. In the case of Air League of PIAC Employees through President v. Federation of Pakistan M/O Labour and Manpower Division Islamabad and others (2011 SCMR 1254) this Court has held that the Federal Government has no power to legislate on the subject of labour welfare and trade unions, which subjects, after the Eighteenth Amendment have devolved upon the Provinces, which judgment under Article 189 of the Constitution is binding on all Courts in Pakistan. Thus, the IRA Civil Appeals No.1583 to 1598 of 2014 etc. -: 12 :- 2012 is not valid law. It was also the case of the appellants/petitioner that the IRA 2012 cannot be validated on the basis of Entry No.3 of the FLL on the ground that it is intended to discharge obligation under the International Treaties and Conventions such as the ILO Conventions No.87 and 98, especially when the Provincial Legislatures have already made the laws on the subjects covered by it (IRA 2012). Further, by means of the IRA 2012 a parallel legal forum in the shape of NIRC established under it (IRA 2012) alongside the Labour Courts established under the Provincial laws has been created which has resulted in a confusion with regard to the relevant forum to be approached. (2) That since the promulgation of the Government of India Act, 1935 till the Constitution of 1973, the subject of trade unions and workers welfare has consistently never ever been in the Federal sphere of legislation. The Parliament, through the Eighteenth Amendment, with a deliberate and conscious decision, enhanced the quantum of provincial autonomy by abolishing the CLL, which can be said to be one of the most important phases in the constitutional history of Pakistan; however, the learned High Courts have validated the Federal laws as if it had never taken place and the fact of the devolution of powers has been sidelined and treated as inconsequential. In fact, the upholding the federal law means an increase in the legislative power of the Federation and reduction in the legislative power of the Provinces, which is against the intent of the Eighteenth Amendment. (3) That the learned High Courts have unanimously saved the Federal laws by interpreting different entries of the FLL on the tacit assumption that there never was any entry relating to trade unions and labour welfare. Various other entries have been stretched to Civil Appeals No.1583 to 1598 of 2014 etc. -: 13 :- include trade unions and workers welfare while disregarding the basic fact that this subject was previously the subject matter of Entries No.26 and 27 of the CLL which have now been omitted i.e. transferred exclusively to the Provincial sphere. It is obvious that entries should be construed while taking an overall view of the contents thereof and not in isolation as if the other entries have never existed in the first place. The fact that the upholding the Federal legislation necessarily means invalidating and striking down either full or certain provisions of all four provincial Acts (Provincial Industrial Relation Acts). In fact, the findings of the learned High Courts appear to be on the basis that there is a vacuum in the law, which in fact was not there, as all the four Provincial legislatures had enacted laws providing an alternate route. (4) There is no bar on a Provincial legislature to make trans- provincial legislation. The rights of the labourers/workers are better protected through having Province-wide trade unions rather than trade unions which are operating at the Federal level or in other provinces and can only be given relief by a single body, namely the NIRC. Further, Article 17 of the Constitution does not contemplate the necessity for nationwide trade unions. If the Provincial legislatures, considered that a nationwide trade union was beneficial they could have provided for the same through the constitutional mechanism provided by Article 144 of the Constitution, by authorizing the Federal legislature to legislate on this subject. They have, however, in their legislative wisdom, consciously decided not to do so. It is a legislative policy matter on which the concerned legislatures shall be allowed to decide and the learned High Courts ought not to interfere therein. Civil Appeals No.1583 to 1598 of 2014 etc. -: 14 :- (5) As per the definitions of terms ‘employer’, ‘establishment’, ‘industrial dispute’ and ‘industry’ contained in the Provincial law of Sindh, every commercial entity, whether it is operating on a trans- provincial basis or on a provincial basis, irrespective of the fact as to whether it has certain employees in other Provinces apart from Sindh would be covered by the Sindh Industrial Relations Act, 2013 (SIRA 2013). However, the Federal Act (IRA 2012), as interpreted by the High Courts, excludes in totality the jurisdiction of the Provincial Labour Courts with regard to the trade unions operating for and in relation to any company operating in Sindh which has branches in other Provinces. Therefore, this was not a case of vacuum which the Federal law, by referring to the so called trans-provincial trade unions had filled in. In fact, it was a blatant usurpation of Provincial autonomy by the Federal Government and deprivation of the jurisdiction of Provincial Labour Courts by limiting their jurisdiction only to those companies which do not have branches in other Provinces. (6) In terms of Section 3 of the SIRA 2013, which deals with trade unions and freedom of association, it is specifically provided that workers, without any distinction whatsoever, shall have the right to establish and join trade unions of their own choice. With the Federal law, this Section has been reduced in its scope and ambit and will now apply to only those companies which do not have branches in other Provinces. There is no justification whatsoever for this arbitrary deprivation of the rights of workmen in Sindh merely because the company for which they work has branches in different Provinces. Likewise, the scope of Sections 17, 34 and 45 of the Act has also been reduced; inasmuch as, the right of workmen to take a local dispute before a local Court has been infringed. Civil Appeals No.1583 to 1598 of 2014 etc. -: 15 :- (7) There is a critical distinction between legislative competence and fundamental rights. Insofar as the question of legislative competence is concerned the same is governed by the Article 142 of the Constitution and the Articles relating to fundamental rights are irrelevant in this regard. The fundamental rights are the rights conferred on citizens of Pakistan and have nothing whatsoever to do with legislative competence, which is a totally different concept. The learned High Courts have not only mixed together these two conceptually distinct and disparate aspects of constitutional interpretation but also the concept of legislative competence has been subordinated to the concept of fundamental rights. This has been done on the assumption that a trans-provincial trade union is desirable. Article 7, together with Article 8 of the Constitution, controls all the fundamental rights. These Articles clearly lay down restrictions upon the “State”; a restriction from passing a law in violation of the fundamental rights. The definition of State includes both the Federal as well as the Provincial organs of the State. The framers of the Constitution, irrespective of the question of legislative competence, which has to be determined under Article 142 ibid, stipulated that a violation of fundamental rights, either by the Federal or by the Provincial legislatures would be illegal. (8) The learned Baluchistan High Court, upheld the Federal Legislation by relying upon the interpretation of US Supreme Court, whereby the Entry relating to “commerce” in the US Constitution has been stretched to include trade unions and workers welfare, so by means of a similar process, the Entry relating to commerce contained in Entry No. 27 of Part-I of the FLL in our Constitution, may also be so structured. While holding so, the learned High Court has ignored the fact that the entries in the US Constitution are very brief, as Civil Appeals No.1583 to 1598 of 2014 etc. -: 16 :- against it, the Constitution of Pakistan set out at great length and detail various topics which form the subject matter of the jurisdiction of the different legislatures, and previously certain entries (Entries No.26 and 27) of the CLL were dealing with these subjects but were abolished and no corresponding entry was included/inserted in the FLL. Further, the US Supreme Court is unique in the western world as being the only openly politicized judicial institution; whereas, the Pakistan Supreme Court is a far better judicial model, therefore, in these circumstances, interpretation given by the US Supreme Court should not be followed by this Court irrationally. (9) The learned High Courts have held that a Provincial legislature does not have the power to pass laws in relation to companies which operate in more than one province. There is nothing on the constitutional plane preventing the Provincial Legislature from passing a law in relation to trade unions and workmen, which would make it compulsory and mandatory for each company to allow all its employees, no matter where they are working, to become members of a trade union. Thus, a company incorporated in one Province and having its head office therein and a branch office in other Province can allow all its workmen to be members of a single union. There is nothing unconstitutional or illegal about it, as all the workers can be subjected to the laws of the said Province. Since the large companies usually have branches in different Provinces e.g. all major banks and other corporate entities such as PIA, it is obvious that the jurisdiction and legislative competence of the Provinces has been curtailed by the learned High Courts. Even otherwise, having different trade unions operating in different Provinces will cause no harm and detriment to the workmen. It is not obvious that the interest of the small minority of workmen in one Province are not co-terminus or identical with the Civil Appeals No.1583 to 1598 of 2014 etc. -: 17 :- thousand employees in other Province. If there is only one trade union to cover both sets of workmen, then it is obvious that the majority view will be based on the interests of the vast majority of the workmen while the minority workmen’s grievances may be disregarded. The principle of justice being delivered to the door step is radically breached by having only one forum at the Federal level, namely, NIRC based in Islamabad. In contrast to this, there are more than 30 Labour Courts in the different Provinces, therefore, it is obviously to the advantage of workmen to be able to have resort to a court at their door step. Although the NIRC travels to different Provinces, obviously one Court travelling on circuit is not a substitute for as many as 30 Courts operating all over the country. 5. On the other hand, while supporting the judgments of the learned High Court (impugned herein), it is the case of the respondents that this Court has always leaned towards preserving the competence of the legislature and thus saving a statute rather than striking it down. Therefore, while determining the question whether any of the Entries of the FLL is wide enough to encompass within its ambit the IRA 2012, maximum possible amplitude must be provided to the Entries. The subjects of labour and trade unions are covered under many of the Entries of the FLL; therefore, the IRA 2012 was competently legislated by the Federal Legislature. Inasmuch as, as relied upon by the learned High Courts, the subjects dealt with in the IRA 2012 are covered under Entries No.3, 8, 27, 31, 32, 58 and 59 of Pert-I and Entries No.3, 13 and 18 of Pert-II of FLL, therefore, being covered by the Entries in the FLL, the IRA 2012 cannot be struck down. Further, a provincial law cannot operate beyond the territorial limits of the Province; therefore, the provincial Civil Appeals No.1583 to 1598 of 2014 etc. -: 18 :- IRAs cannot secure the rights of the employees working in Establishments which are trans-provincial. The IRA 2012, which guarantees the employees of inter-provincial establishments to organize themselves form trade unions on inter-provincial level and to seek appointment of Collective Bargaining Agent and also to have an industrial dispute resolution mechanism at the Federal level, is not void. With regard to the judgment of this Court in Air League of PIAC Employees’ case (supra) it is the case of the respondents that though under Article 189 of the Constitution a decision of this Court is binding only to the extent it decides a question of law or is based upon or enunciates a principle of law but in the said case the issue of authority of the Federal or Provincial Legislature to legislate on the subjects in issue has not been decided, therefore, the validity the IRA 2012 has to be determined decisively in the instant proceedings. 6. Learned Additional Attorney General for Pakistan fully supported the impugned judgments declaring the IRA 2012 to be a valid piece of legislation. Learned Additional Advocate General Punjab adopted the arguments of learned counsel for the appellants and her stance is similar to the appellants that after the abolition of the CLL through the Eighteenth Amendment, the subject of labour and trade unions falls within the legislative competence of the Provinces and as such IRA 2012 is ultra vires the Constitution. Same is the stance of learned Additional Advocate General Sindh. Learned Additional Advocate General KPK supported the impugned judgments to the extent of validity of the IRA 2012 and its applicability only to the Establishments existing at trans-provincial level and the Trade Unions operating therein. However, according to him the Provincial legislation can co-exist with the Federal legislation, as the former Civil Appeals No.1583 to 1598 of 2014 etc. -: 19 :- would apply to the Establishments existing at trans-provincial level and the Trade Unions operating therein, whereas, the latter would apply to the Establishments/Trade unions functioning within one Province only. Same is the stance of the learned Additional Advocate General Balochistan. 7. Before dilating upon the questions involved in the instant matter in the light of the submissions made by the learned counsel as well as the Constitutional and legal provisions and also the relevant case-law, it is appropriate to first mention the history of the labour related laws which remained applicable from time to time in Pakistan. At the time of the independence of Pakistan in 1947, two laws on the subject i.e. the Trade Unions Act, 1926 and the Industrial Disputes Act, 1941 were holding the field. The Trade Unions Act had been enacted to provide for the registration of Trade Unions, to specify their function, privileges and powers and other incidental matters. Chapter III thereof provided for the rights and liabilities of registered Trade Unions. The said Act neither specifically conferred on the Trade Unions, whether registered or unregistered, either the power to represent workers in any proceedings or the persons to resort to authorize a strike. However, Section 15 of the said Act specified the objects on which the general funds of a registered Trade Union could be spent. In 1927, the Bombay Trade unions Regulations were issued under the provisions of section 29 of the Act and after the coming into force of the Government of India Act, 1935 the Central Government, in 1938, issued the Central Trade Unions Regulations in respect of the Trade Unions whose objects extended beyond one Province. The Bombay Trade Unions Regulations were subsequently re-named, with regard to the Province Civil Appeals No.1583 to 1598 of 2014 etc. -: 20 :- of Sindh, as the Sindh Trade Unions Regulations, under the provisions of Section 3 of Sindh Act 1 of 1951. As far as the Industrial Disputes Act, 1947 is concerned, it came into force on l.4.1947 and provided for the Investigation and settlement of Industrial disputes by or through the Works Committees, Concilia- tion Courts Boards of Conciliation, Courts of Inquiry and Industrial Tribunals. Under Section 38 thereof, the Industrial Disputes Rules, 1947 were framed by the Central as well as Provincial Governments. However, this Act was repealed and replaced by the Industrial Disputes Ordinance, 1959, which was promulgated on 21.10.1959. Section 34(1) of the Ordinance of 1959, like Section 36(1) of its predecessor Act, entitled a workman, who was a party to a dispute, to be represented in any proceedings under the said Ordinance by an Officer of a Registered Trade Union. In 1960, the Federal Government framed the Industrial Disputes (Central) Rules, 1960, superseding the earlier Rules of 1938. The Trade Unions Act, 1926 was substantially modified by Trade Unions (Amendment) Ordinance, 1960 (Ordinance No.KIV of 1960), whereby Chapter III-E was added thereto providing for the recognition of registered Trade Unions by the employers on the fulfillment of certain conditions by such Trade Union. In March 1968 the West Pakistan Trade Unions Ordinance, 1968 and the West Pakistan Industrial Disputes Ordinance, 1968 were promulgated. The right of the Trade Unions to negotiate with the employer through its executive, in respect of the matters connected with the employment and conditions of work, was retained. In November, 1969, the Industrial Relations Ordinance, 1969 was enacted to amend and consolidate the laws relating to reformation of trade unions and to achieve uniformity, whereby the West Pakistan Industrial Disputes Ordinance, 1968 was repealed. This new Civil Appeals No.1583 to 1598 of 2014 etc. -: 21 :- Ordinance was substantially modified by the Industrial Relation (Amendment) Ordinance, 1970 (Ordinance No.XIX of 1970), the Labour Laws (Amendment) Ordinance, 1972 (Ordinance No.IX of 1972), the Labour Laws (Amendment) Act, 1972 (Act No.V of 1972) and the Industrial Relations (Amendment) Act, 1973 (Act No.XXIX of 1973). By the Labour Laws (Amendment) Ordinance, 1972, Section 22-A was inserted in the Industrial Relations Ordinance, 1969 which provided for the establishment of the National Industrial Relations Commission (NIRC), for settlement of disputes between employers and workers. The mechanism for the functioning of NIRC was provided under the National Industrial Relations Commission (Procedure and Functions) Regulations, 1973. Then comes the Industrial Relations Ordinance, 2002, which repealed and replaced the Industrial Relations Ordinance, 1969, however, all registered trade unions, were saved and were deemed to have been registered under the new Ordinance. The Industrial Relations Ordinance, 2002 was then repealed and replaced by the Industrial Relations Act, 2008; however, once again the registered trade unions were saved and were deemed to have been registered under the Act, 2008. Importantly, the said Act was a temporary enactment as under Section 87(3) thereof it was provided that unless repealed earlier, the IRA 2008 shall seize to exist on 30.4.2010. Till that date, no legislation was made either to supersede or to extend the period of operation of the said law; as such, by virtue of the said sunset clause the IRA 2008 stood repealed on 30.4.2010. In the meantime, on 20.4.2010, through the Eighteenth Amendment to the Constitution, the CLL was abolished, as such, Entries No.26 and 27 which provided the legislative authority to the Federal Legislature alongside the Provincial Legislature regarding the subjects, inter alia, of labor and trade Civil Appeals No.1583 to 1598 of 2014 etc. -: 22 :- unions, no more remained in field. It is to be noted that Clause (6) of newly inserted Article 270AA of the Constitution provided that the laws with respect to the matters enumerated in the erstwhile CLL, including Ordinances, Orders, rules, bye-laws, regulations and notifications and other legal instruments having the force of law, in force in Pakistan, immediately before the commencement of the said amendment would continue to remain in force until altered, repealed or amended by the competent authority. After 30.4.2010 the Labour Courts, Labour Appellate Tribunal as well as NIRC stopped functioning for the reason that the IRA 2008 had lapsed and no further legislation had been made by the Federal Legislature. When confronted with the issue, the NIRC, Islamabad, held that by means of the Eighteenth Amendment, the IRA 2008 had been protected and was fully operative till altered or amended or repealed by the competent authority. As the Labour Courts as well as the Labour Appellate Tribunal stopped functioning, the then Chief Justice of the Lahore High Court initiated suo motu proceedings. The suo motu as also the Writ Petition No.10746/2010 was disposed of on the basis of the report submitted on behalf of the Government of Punjab stating therein that IRA 2008 stood protected only upto 30.6.2011 in accordance with the protection provided under Article 270AA of the Constitution. On the same issue, the High Court of Sindh, in Constitutional Petition No.D-1432/2010, held that IRA 2008 stood repealed on 30.4.2010 by force of Section 87(3) thereof, whereas the IRO 1969 stood revived from the said date. The Lahore High Court, Rawalpindi Bench, in ICA No.200/2008 held that IRA 2008 had been protected till 30.4.2011 in view of Article 270AA of the Constitution. The Islamabad High Court, in Writ Petition Civil Appeals No.1583 to 1598 of 2014 etc. -: 23 :- No.4917/2010, also held that in view of Section 87(3) of IRA 2008, it (IRA 2008) stood repealed on 30.4.2010. Thereafter, pursuant to the Eighteenth Amendment, the Provincial Legislatures of all the four Provinces made legislation on the subjects of the trade unions and labour disputes, etc. In the province of Punjab, on 13.6.2010, the Punjab Industrial Relations Ordinance, 2010 (PIRO 2010) was enacted, which was to remain operative till 10.9.2010, however, the life of the Ordinance was extended for a further period of ninety days through a Resolution passed by the Provincial Assembly on 23.7.2010. In the meantime, on 9.12.2010 the Punjab Industrial Relations Act, 2010 (PIRA 2010) was enacted which repealed the PIRO 2010. In the Province of Sindh, on 5.7.2010, through the Industrial Relations (Revival and Amendment) Act, 2010, the IRO 2008 was revived w.e.f. 1.5.2010 as if it had never been repealed. In the Province of Khyber Pukhtunkhwa, on 14.7.2010, the Khyber Pukhtunkhwa Industrial Relations Ordinance, 2010 (KIRO 2010) was promulgated. Likewise, in the province of Balochistan, on 22.72010, the Balochistan Industrial Relations Ordinance, 2010 (BIRO 2010) was issued, which was then replaced on 15.10.2010 by the Balochistan Industrial Relations Act, 2010 (BIRA 2010). 9. The question whether the IRA 2008 stood repealed on 30.4.2010; or the same had been protected either till 30.6.2011 or permanently; or if it lapsed/got repealed, whether the IRO 1969 stood revived or not, came up for consideration before this Court in Air League of PIAC Employees’ case (supra) wherein, vide judgment dated 2.6.2011, it was held that IRA 2008 ceased to continue in force w.e.f. 30.4.2010. As no Federal Law remained in the field, Civil Appeals No.1583 to 1598 of 2014 etc. -: 24 :- thereafter, on 14.3.2012, the Federal Legislature promulgated the IRA 2012. As per its preamble, the purpose of its promulgation was to consolidate and rationalize the law relating to formation of trade unions, and improvement of relations between employers and workmen in the Islamabad Capital Territory and in trans-provincial establishments and industry. It was also to recognize the right of fundamental right of ‘freedom of association’ as envisaged in Article 17 of the Constitution, for implementation of the ILO Conventions No.87 and 98 and is specifically applicable to only trans-provincial establishments. 10. Before going to the constitutional questions, it is appropriate to first consider the ratio of the judgment of this Court in AIR League of PIAC Employees’ case (supra). In the said case, neither the constitutionality of any of the Federal legislations nor the legislative competence of the Federal Legislature to legislate on the subjects of labour and trade unions was considered, rather the only issue therein was that whether after the Eighteenth Amendment, the IRA 2008 stood protected or not, and if not protected whether the IRO 1969 revived or not. The Court, without going into validity of the federal or provincial legislations, held that IRA 2008 on the basis of Eighteenth Constitutional Amendment stood protected and continued till 30.6.2011. Further, without considering in detail whether the subjects of labour and trade unions fall within the legislative domain of Federer or Provincial legislature only made reference of Article 144(1) of the Constitution. Relevant paras therefrom reads as under:- “22. At the cost of repetition, it is to be noted that the IRA, 2008 stood repealed on 30-4-2010 by virtue of its section 87(3), whereas, the provincial legislation was made on 13th June, 2010; 5th July, 2010; 14th July, 2010; and Civil Appeals No.1583 to 1598 of 2014 etc. -: 25 :- 22nd July, 2010 for the provinces of Punjab, Sindh, Khyber Pukhtunkhwa and Balochistan, respectively. Therefore, there was a period of about two months for which there was no legislation, Federal or Provincial, in force. The Labour Laws provide the procedure and mechanism for the resolution of disputes, registration of Trade Unions and establishment of Forum for the redressal of grievance of the labourers as well as employers, therefore, it is mainly a procedural law and in the light of the well- settled principles of interpretation of Statutes as mentioned above, the procedural law has retrospective effect unless contrary is provided expressly or impliedly, the same would thus be applicable retrospectively w.e.f. 1.5.2010. Further, in the Province of Sindh, the Industrial Relations (Revival and Amendment) Act, 2010, the IRA, 2008 has been revived w.e.f. 1st May, 2010, therefore, the interregnum period has already been catered for. 27. Now turning towards the submission of the learned amicus curiae on the vires of Provincial Labour Laws on the ground that there are many Institutions/Corporations which have their branches all over the country and there were country wide Trade Unions but now Trade Union can only be registered under the legislation of a specific province. It is to be noted that instant proceedings have been initiated under Article 184(3) of the Constitution with a limited purpose of having a declaration that. IRA, 2008 on the basis of Eighteenth Constitutional Amendment stood protected and continued till 30th June, 2011, therefore, the vires of the same cannot be considered in such proceedings. However, as stated earlier Article 144(1) of the Constitution has provided mechanism for making central legislation in respect of matters not covered in the Federal Legislative List. 29. Thus, for the foregoing reasons, it is held that IRA, 2008 ceased to continue in force w.e.f. 30th April, 2010, as a consequence whereof petition is dismissed.” It is evident from the above that this Court consciously left open the question of the legislative domain of Federal or Provincial Legislature Civil Appeals No.1583 to 1598 of 2014 etc. -: 26 :- as also the constitutionality of labour laws. Therefore, the said judgment passed by a learned Three-Member Bench of this Court, is in no way an impediment in the way of the High Courts or even this Court to consider and decide the validity of the IRA 2012. 11. At this stage, it is also appropriate to consider the history of legislative competence of the federal/provincial legislature regarding the subject of trade unions and labour rights, etc. In this regard it is to be noted that prior to the creation of Pakistan, the subject of trade unions, labour disputes and labour matters were mentioned in Entry No.35 of List-I of the FLL and also in Entries No. 26, 27 and 29 of Part-II of the CLL of the Government of India Act, 1935. The same was in the Seventh Schedule thereof and was controlled by subsection Section 126(2) thereof, which is reproduced hereunder:- List-I of the Federal Legislative List 35. Regulation of labour and safety in mines and oilfields. Part-II of the Concurrent Legislative List 26. Factories. 27. Welfare of labour; conditions of labour; provident funds; employers' liability and workmen's compensation; health insurance, including invalidity pensions; old age pensions. 29. Trade unions; industrial and labour disputes. Section 126. Control of Federation over Province in certain cases.- (2) The executive authority of the Federation shall also extend to the giving of directions to a Province as to the carrying into execution therein of any Act of the Federal Legislature which relates to a matter specified in Part II of the Concurrent Legislative List and authorises the giving of such directions: Civil Appeals No.1583 to 1598 of 2014 etc. -: 27 :- Provided that a Bill or amendment which proposes to authorise the giving of any such directions as aforesaid shall not be introduced into or moved in either Chamber of the Federal Legislature without the previous sanction of the Governor- General in his discretion.” The said subjects were mentioned in Entry No.5 of Part II of the Concurrent List in Fifth Schedule of the Constitution of Islamic Republic of Pakistan, 1956. The same was controlled by Article 126(2)(d) thereof, which reads as under:- Part-II of the Concurrent List 5. Relations between employers and employees; trade unions; industrial and labour disputes; welfare of labour including conditions of work; provident funds; employers’ liability; workmen's compensation; invalidity and old age pensions and maternity benefits; vocational and technical training of labour; social security and social insurance. Article 126. (2) The executive authority of the Federation shall extend to the giving of directions to a Province as may appear to the Federal Government to be necessary for the purpose of clause (1), and the said authority shall also extend to giving of directions to a Province- (d) as to the carrying into execution in the Province of any Act Parliament which relates to a matter enumerated in Part II of the Concurrent List and authorizes the giving of such directions.” In the Constitution of 1962, there was only one legislative list pertaining to the subjects within the legislative competence of Central Legislature, provided in Third Schedule, however, the subjects pertaining to labour disputes and trade unions, etc., were not mentioned in the said list. The said Schedule was controlled by Article 131(2)(c) thereof, which reads as under: - Civil Appeals No.1583 to 1598 of 2014 etc. -: 28 :- 131. Central law-making power.- (2) Where the national interest of Pakistan in relation to – (c) the achievement of uniformity in respect of any matter in different parts of Pakistan, So requires, the Central Legislature shall have power to make laws (including laws having extra-territorial operation) for the whole or any part of Pakistan with respect to any matter not enumerated in the Third Schedule. In the Interim Constitution of 1972, Part-II of CLL in Fourth Schedule deals with the subject of trade unions and labour disputes, which was controlled by Article 138 thereof, which read as under: - Concurrent List 29. Welfare of labor; conditions of labor, provident funds; employer's liability and workmen's compensation, health insurance including invalidity pensions, old age pensions. 31. Trade unions; industrial and labor disputes. Before the Eighteenth Amendment, two Legislative Lists were available in the Constitution of 1973, namely, the FLL, which contained the subjects in respect whereof the Federation could legislate and the CLL, which contained the subjects in respect whereof either the Federation or a Province could legislate; whereas, the subjects which were not found in either of these two lists, were within the exclusive domain of the Provinces. The Entries No.26, 27 and 30 of the CLL in the Fourth Schedule dealt with the issue of trade unions and labour welfare, etc., which was controlled by Article 70 thereof. The same are reproduced here under:- Concurrent Legislative List 26. Welfare of labor; conditions of labor, provident funds; employer's liability and workmen's compensation, health insurance including invalidity pensions, old age pensions. 27. Trade unions; industrial and labor disputes. Civil Appeals No.1583 to 1598 of 2014 etc. -: 29 :- 30. Regulation of labor and safety in mines, factories and oil- fields. 70. Introduction and passing of Bills.- (1) A Bill with respect to any matter in the Federal Legislative List may originate in either House and shall, if it is passed by the House in which it originated, be transmitted to the other House; and, if the Bill is passed without amendment, by the other House also, it shall he presented to the President for assent. (4) In this Article and the succeeding provisions of the Constitution, "Federal Legislative List" means the Federal Legislative List and the in the Fourth Schedule. Reference in this regard may also be made to the provisions of the Constitution of India which contains three legislative lists i.e. the Union list, the State list and the Concurrent List. Entries No.22 to 24 of the Concurrent List in Seventh Schedule thereof deals with the subjects of trade unions and labour disputes, etc. and is controlled by Article 246 thereof, therefore, the Union as well as the States has joint powers to legislate in respect thereof. The same is reproduced below: - Concurrent List, List-III 22. Trade unions; industrial and labour disputes. 23. Social security and social insurance; employment and unemployment. 24. Welfare of labour including conditions of work, provident funds, employers liability, workmens compensation, invalidity and old age pensions and maternity benefits. 246. Subject matter of laws made by Parliament and by the Legislatures of States.- (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the Union List). (2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters Civil Appeals No.1583 to 1598 of 2014 etc. -: 30 :- enumerated in List III in the Seventh Schedule (in this Constitution referred to as the Concurrent List). (4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in the State List. 12. The relevant provisions of the Constitution of 1973 are Articles 97, 137, 141 to 144 of the Constitution, which for reference are reproduced below:- 97. Extent of executive authority of Federation. - Subject to the Constitution, the executive authority of the Federation shall extend to the matters with respect to which Majlis-e-Shoora (Parliament) has power to make laws, including exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan: Provided that the said authority shall not, save as expressly provided in the Constitution or in any law made by Majlis-e- Shoora (Parliament), extend in any Province to a matter with respect to which the Provincial Assembly has also power to make laws. 137. Extent of executive authority of Province.- Subject to the Constitution, the executive authority of the Province shall extend to the matters with respect to which the Provincial Assembly has power to make laws: Provided that, in any matter with respect to which both Majlis-e-Shoora (Parliament) and the Provincial Assembly of a Province have power to make laws, the executive authority of the Province shall be subject to, and limited by, the executive authority expressly conferred by the Constitution or by law made by Majlis-e-Shoora (Parliament) upon the Federal Government or authorities thereof. 141. Extent of Federal and Provincial laws. Subject to the Constitution, Majlis-e-Shoora (Parliament) may make laws (including laws having extra-territorial operation) for the Civil Appeals No.1583 to 1598 of 2014 etc. -: 31 :- whole or any part of Pakistan, and a Provincial Assembly may make laws for the Province or any part thereof. 142. Subject-matter of Federal and Provincial laws.- Subject to the Constitution- (a) Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to any matter in the Federal Legislative List; (b) Majlis-e-Shoora (Parliament) and a Provincial Assembly shall have power to make laws with respect to criminal law, criminal procedure and evidence; (c) Subject to paragraph (b), a Provincial Assembly shall, and Majlis-e-Shoora (Parliament) shall not, have power to make laws with respect to any matter not enumerated in the Federal Legislative List; and (d) Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to all matters pertaining to such areas in the Federation as are not included in any Province. 143. Inconsistency between Federal and Provincial Law.- If any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of Majlis-e-Shoora (Parliament) which Majlis-e-Shoora (Parliament) is competent to enact, then the Act of Majlis-e-Shoora (Parliament), whether passed before or after the Act of the Provincial Assembly, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void. 144. Power of Majlis-e-Shoora (Parliament) to legislate for one or more Provinces by consent.-(1) If one or more Provincial Assemblies pass resolutions to the effect that Majlis-e-Shoora (Parliament) may by law regulate any matter not enumerated the Federal Legislative List in the Fourth Schedule, it shall be lawful for Majlis-e-Shoora (Parliament) to pass an Act for regulating that matter accordingly, but any act so passed may, as respects any Province to which it applies, be amended or repealed by Act of the Assembly of that Province. The learned High Courts while holding the IRA 2012 to be intra vires of the Constitution has relied upon following entries of the FLL: - Civil Appeals No.1583 to 1598 of 2014 etc. -: 32 :- Part-I 3. External affairs; the implementing of treaties and agreements, including educational and cultural pacts and agreements, with other countries; extradition, including the surrender of criminals and accused persons to Governments outside Pakistan. 27. Import and export across customs frontiers as deemed by the Federal Government, inter-provincial trade and commerce, trade and commerce with foreign countries; standard of quality of goods to be exported out of Pakistan. 31. Corporations, that is to say, the incorporation, regulation and winding-up of trading corporations, including banking, insurance and financial corporations, but not including corporations owned or controlled by a Province and carrying on business only within that Province, or cooperative societies, and of corporations, whether trading or not, with objects not confined to a Province, but not including universities. 32. International treaties, conventions and agreements and International arbitration. 58. Matters which under the Constitution are within the legislative competence of Majlis- e-Shoora (Parliament) or relate to the Federation. 59. Matters incidental or ancillary to any matter enumerated in this Part. Part II: 3. Development of industries, where development under Federal control is declared by Federal law to be expedient in the public interest; institutions, establishments, bodies and corporations administered or managed by the Federal Government immediately before the commencing day, including the [Pakistan Water and Power Development Authority and the Pakistan Industrial Development Corporation]; all undertakings, projects and schemes of such institutions, establishments, bodies and corporations, Civil Appeals No.1583 to 1598 of 2014 etc. -: 33 :- industries, projects and undertakings owned wholly or partially by the Federation or by a corporation set up by the Federation. 13. Inter-provincial matters and co-ordination. 18. Matters incidental or ancillary to any matter enumerated in this Part. 13. It is well established this Court, while considering the vires of a legislative enactment under its powers of judicial review, can consider not only the substance of the law but also the competence of the legislature. Further, though it is an accepted principle that no mala fide can be attributed to the legislature, however, the bona fides of the legislature as also the purpose and object of a statute may also be considered in the determination of the vires of a statute. The vires of a statute can also be determined on the ground that the legislation is colourable. In the instant case the only issue involved is the legislative competence of the Parliament vis-à-vis the legislative authority of the Provincial legislature. In this regard it is to be noted that there is always a presumption in favour of the constitutionality of a legislative enactment unless ex facie it appears to be violative of any of the Constitutional provisions and in a case where two opinions with regard to the constitutionality of an enactment are possible, the one in favour of the validity of the enactment is to be adopted. Meaning thereby that when a law is enacted by the Parliament, the presumption lies that Parliament has competently enacted it (law), and if the vires of the same (law) are challenged, the burden always lies upon the person making such challenge to show that the same (law) is violative of any of the fundamental rights or the provisions of the Constitution. It is also a cardinal principle of interpretation that law should be interpreted in Civil Appeals No.1583 to 1598 of 2014 etc. -: 34 :- such a manner that it should be saved rather than destroyed. The Courts should lean in favour of upholding the constitutionality of a legislation and it is thus incumbent upon the Courts to be extremely reluctant to strike down laws as unconstitutional. This power should be exercised only when absolutely necessary for injudicious exercise of this power might well result in grave and serious consequences. Reliance in this regard may be placed upon the cases of Province of East Pakistan v. Sirajul Haq Patwari (PLD 1966 SC 854), Mehreen Zaibun Nisa Vs. Land Commissioner, Multan and others (PLD 1975 SC 397), M/s Elahi Cotton Mills Ltd and others Vs. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others (PLD 1997 SC 582), Dr. Tariq Nawaz v. Govt. of Pakistan (2000 SCMR 1956), Mian Asif Islam v. Mian Mohammad Asif (PLD 2001 SC 499), Pakistan Lawyers Forum and others Vs. Federation of Pakistan and others (PLD 2005 SC 719), Master Foam v. Govt of Pakistan (PLD 2005 SC 373), Federation of Pakistan through Secretary, Ministry of Finance and others v. Haji Muhammad Sadiq (PLD 2007 SC 133), Syed Aizad Hussain v. Motor Registration Authority (PLD 2010 SC 983), Dr. Mobashir Hassan v. Federation of Pakistan (PLD 2010 SC 265), In re: Regarding Pensionary Benefits of the Judges of Superior Courts (PLD 2013 SC 829) , M.L. Kamra v. Chairman-cum-Managing Director, New India Assurance Co. Ltd. & Anr [(1992) 2 SCC 36], M/s. Ispat Industries Ltd. v. Commissioner of Customs, Mumbai [(2006) 9 SCALE 652], Manish Maheshwari vs Asstt. Commissioner Of Income Tax (AIR 2007 SC 1696), Bharat Petroleum Corpn. Ltd vs Maddula Ratnavalli & Ors [2007 (6) SCC 81] and also to the case reported as Lahore Development Authority through D.G. and others Vs. Ms. Imrana Tiwana and others (2015 SCMR 1739). In Civil Appeals No.1583 to 1598 of 2014 etc. -: 35 :- the last mentioned case, this Court has held that “The power to strike down or declare a legislative enactment void, however, has to be exercised with a great deal of care and caution. The Courts are one of the three coordinate institutions of the State and can only perform this solemn obligation in the exercise of their duty to uphold the Constitution. This power is exercised not because the judiciary is an institution superior to the legislature or the executive but because it is bound by its oath to uphold, preserve and protect the Constitution. It must enforce the Constitution as the Supreme Law but this duty must be performed with due care and caution and only when there is no other alternative.” The Court after relying upon Cooley: "Treatise on Constitutional Limitations, Pages 159 to 186”, H.M. Seervai: "Constitutional Law of India, Volume I, Pages 260 to 262”, Mr. A.K. Brohi: "Fundamental Law of Pakistan, Pages 562 to 592”, Mr. Justice Fazal Karim: "Judicial Review of Public Actions, Volume I, Pages 488 to 492”, summarized the rules which must be applied in discharging the duty to declare laws unconstitutional, which read as under: - (a) There is a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute is placed next to the Constitution and no way can be found in reconciling the two; (b) Where more than one interpretation is possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favours validity; (c) A statute must never be declared unconstitutional unless its invalidity is beyond reasonable doubt. A reasonable doubt must be resolved in favour of the statute being valid; (d) If a case can be decided on other or narrower grounds, the Court will abstain from deciding the constitutional question; (e) The Court will not decide a larger constitutional question than is necessary for the determination of the case; (f) The Court will not declare a statute unconstitutional on the Civil Appeals No.1583 to 1598 of 2014 etc. -: 36 :- ground that it violates the spirit of the Constitution unless it also violates the letter of the Constitution; (g) The Court is not concerned with the wisdom or prudence of the legislation but only with its constitutionality; (h) The Court will not strike down statutes on principles of republican or democratic government unless those principles are placed beyond legislative encroachment by the Constitution; (i) Mala fides will not be attributed to the Legislature. 14. There another rule of interpretation that entries in a Legislative List are to be interpreted liberally. Reliance in this regard may be made to the following cases: (a) In United Provinces Vs. Mt. Atiqa Begam (AIR 1941 FC 16) it was held that “none of the items in the lists is to be read in a narrow or restricted sense and each general word therein should be held to extend to all ancillary and subsidiary matters which can fairly and reasonably be said to be comprehended in it. (b) In Navinchandra Mafatlal Vs. The Commissioner of Income Tax, Bombay City (AIR 1954 SC 58) it was held that “the cardinal rule of interpretation, however, is that words should be read in their ordinary, natural and grammatical meaning subject to this rider that in construing words in a constitutional enactment conferring legislative power the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude.” (c) In Sri Ram Ram Narain Medhi vs The State Of Bombay (AIR 1959 SC 459) it was held as under: - “It is well settled that these heads of legislation should not be construed in a narrow and pedantic sense but should be given a large and liberal interpretation. As was observed by the Judicial Committee of the Privy Council in British Coal Corporation v. The King [(1935) A.C. 500]:- "Indeed, in interpreting a constituent or organic statute such as the Act, that construction most beneficial to the widest possible amplitude of its powers must be adopted." The Federal Court also in the United Provinces V. Atiqa Begum [(1940) F.C.R. 110] pointed out that none of the items in the Lists is to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary Civil Appeals No.1583 to 1598 of 2014 etc. -: 37 :- or subsidiary matters which can fairly and reasonably be said to be comprehended in it.” (d) In M/S New India Sugar Mills Ltd vs Commissioner Of Sales Tax, Bihar (AIR 1963 SC 1207) it was held that “the entry should be interpreted in a liberal spirit and not cut down by narrow technical considerations. The entry in other words should not be shorn of all its content to leave a mere husk of legislative power.” (e) In Navnit Lal C. Javeri v. K.K. Sen, Appellate Assistant Commissioner of Income-tax, Bombay (AIR 1965 SC 1375) it was held as under: - “It is hardly necessary to emphasise that the entries in the Lists cannot be read in a narrow or restricted sense, and as observed by Gwyer, C.J., in the United Provinces v. Atiqa Begum, 1940 FCR 110: AIR 1941 FC 16, "each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it". What the entries in the Lists purport to do is to confer legislative powers on the respective Legislature in respect of areas or fields covered by the said entries; and it is an elementary rule of construction that the widest possible construction must be put upon their words.” (f) In Assistant 'Commissioner of Land Tax, Madras, and others v. Buckingham and Carnatic Co. Ltd. [(1970) 75 ITR 603] it was held as under: - “The legislative entries must be given a large and liberal interpretation, the reason being that the allocation of the subjects to the lists is not by way of scientific or logical definition not by way of a mere simplex enumeration of broad categories. We see no reason, therefore, for holding that Entries 86 and 87 or List I preclude the State Legislature from taxing capital value of lands and buildings under Entry 49 of List II. In our opinion there is no conflict between Entry 86 of List I and Entry 49 of List II. The basis of taxation under the two entries is quite distinct. As regards Entry 86 of List I the basis of the taxation is the capital value of the asset.” (g) In Elel Hotels and Investment Ltd. and another Vs. Union of India (AIR 1990 SC 1664) = [(1989) 3 SCC 698)], wherein the Indian Supreme Court held as under:- "6. … … The cardinal rule of interpretation is that the entries in the legislative lists are not to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it. The widest possible construction, according to the ordinary meaning of the words in the entry, must be put upon them. Reference to Civil Appeals No.1583 to 1598 of 2014 etc. -: 38 :- legislative practice may be admissible in reconciling two conflicting provisions of rival legislative lists. In construing the words in a Constitutional document conferring legislative power the most liberal construction should be put upon the words so that the same may have effect in their widest amplitude.” (h) In Union Of India & Anr., Etc. Etc vs A.Sanyasi Rao & Ors., Etc. Etc (AIR 1996 SC 1219) it was held that: - As held by a Constitution Bench of this Court in Sri Ram Ram Narain Medhi vs. State of Bombay (AIR 1959 SC 459), the heads of legislation in the lists should not be construed in a narrow and pedantic sense, but should be given a large and liberal interpretation. To similar effect are the decisions of this Court in Calcutta Gas Company (Proprietary) Ltd. vs. State of West Bengal and others (AIR 1962 SC 1044 at p. 1049) and Banarasi Das and others vs. The Wealth Tax Officer and others (AIR 1965 SC 1387). In Union of India vs. Shri Harbhajan Singh Dhillon (1971 (2) SCC 779 at p.792), the Court quoted its earlier decision in Harakchand Ratanchand Banthia and others vs. Union of India and others (1969 (2) SCC 166), wherein it was held thus:- ".... The entries in the three Lists are only legislative heads or fields of legislation, they demarcate the area over which the appropriate Legislatures can operate." (i) In Godfrey Phillips India Ltd. & Anr Vs. State of U.P. [(2005) 2 SCC 515] it was held that “where there is the possibility of legislative overlap, courts have resolved the issue according to settled principles of construction of entries in the legislative lists. The first of such settled principles is that legislative entries should be liberally interpreted, that none of the items in the list is to be read in a narrow or restricted sense and that each general word should be held to extend to ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it.” “The second principle is that competing entries must be read harmoniously. The proper way to avoid a conflict would be to read the entries together and to interpret the language of one by that of the other.” [reliance in this regard was placed upon the cases of Governor General in Council vs. Province of Madras [(1945) FCR 179 at pg. 191-192]; State of Bombay vs. Narottamdas Jethabhai (AIR 1951 SC 69); Bar Council of U.P. vs. State of U.P. & Anr. (AIR 1973 SC 231) = [(1973) 1 SCC 261]; D.G. Ghose & Co. (Agents) (P) Ltd. vs. State of Kerala & Anr. [(1980) 2 SCC 410]; Federation of Hotel and Restaurant vs. Union of Civil Appeals No.1583 to 1598 of 2014 etc. -: 39 :- India [(1989) 3 SCC 634] and State of West Bengal vs. Kesoram Industries (AIR 2005 SC 1646) = [(2004) 10 SCC 201], In the matter of Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938 (AIR 1939 FC 1)] (j) In Sh. Jilubhai Nanbhai Khachar etc. etc. Vs. State of Gujarat and anr. etc. etc. [(1995) Suppl. (1) SCC 596] it was held as under: - “It is settled law of interpretation that entries in the Seventh Schedule are not powers but fields of legislation. The legislature derives its power from Article 246 and other related Articles of the Constitution. Therefore, the power to make the Amendment Act is derived not from the respective entries but under Article 246 of the Constitution. The language of the respective entries should be given the widest scope of their meaning, fairly capable to meet the machinery of the Government settled by the Constitution. Each general word should extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. When the vires of an enactment is impugned, there is an initial presumption of its constitutionality and if there is any difficulty in ascertaining the limits of the legislative power, the difficulty must be resolved, as far as possible in favour of the legislature putting the most liberal construction upon the legislative entry so that it may have the widest amplitude. Burden is on the appellants to prove affirmatively of its invalidity. It must be remembered that we are interpreting the Constitution and when the court is called upon to interpret the Constitution, it must not be construed in any narrow or pedantic sense and adopt such construction which must be beneficial to the amplitude of legislative powers. The broad and liberal spirit should inspire those whose duty is to interpret the Constitution to find whether the impugned Act is relatable to any entry in the relevant List.” (k) In Bharat Hydro Power Corp. Ltd. & Ors. Vs. State of Assam & Anr. [(2004) 2 SCC 553] it was held as under: - “It is likely to happen from time to time that enactment though purporting to deal with a subject in one list touches also on a subject in another list and prima facie looks as if one legislature is impinging on the legislative field of the another Legislature. This may result in large number of statutes being declared unconstitutional because the legislature enacting law may appear to have legislated in a field reserved for the other legislature. To examine whether a legislation has impinged in the field of other legislatures, in fact or in substance, or is incidental, keeping in view the true nature of the enactment, the Courts have evolved the doctrine of "pith and substance" for the purpose of determining whether it is legislation with respect to matters in one list or the other. Where the question for determination is whether a particular law relates to a particular subject mentioned in one list or the other, the courts look into the substance of the enactment. Thus, if the Civil Appeals No.1583 to 1598 of 2014 etc. -: 40 :- substance of enactment falls within Union List then the incidental encroachment by the enactment on the State List would not make it invalid. This principle came come to be established by the Privy Council when it determined appeals from Canada or Australia involving the question of legislative competence of the federation or the States in those countries.” (l) In Messrs Haider Automobile Ltd. Vs. Pakistan (PLD 1969 SC 623) it was held as under: - “The items in the legislative list, as was observed in the case of the United Provinces v. Mst. Atique Begum and others (AIR 1941 FC 16) are not to be read in any narrow or pedantic sense. Each general word therein should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to' be comprehended within it. These items describe only comprehensive categories of legislation by a word of broad and general meaning. Thus, by being given the authority to legislate in respect of the Constitution, organisation, jurisdiction and powers of the Supreme Court, the Central Legislature, in my view, acquired the jurisdiction also to legislate with regard to the number of Judges to be appointed, the salaries to be paid to them and the terms and conditions upon which they were to serve in the Supreme Court.” (m) In Pir Rashid-ud-Daula and 3 others v. The Chief Administrator of Auqaf, West Pakistan (PLD 1971 SC 401), it was observed as under: - "In a Federal Constitution, in which an elaborate division of Legislative powers is attempted, it is inevitable that controversy should arise whether one or the other Legislature is encroaching on the other's legislative field, for, no matter how careful the draftsman or how exhaustive the legislative lists it is not possible to provide for all conceivable eventualities or to categories each subject of legislation under a specific label. It is for the resolution of such controversies that the Courts have evolved certain basic tests. A careful examination of the relevant decisions indicates that the main principles deducible from them are:-- (i) That legislation, the validity of which has to be tested, must be scrutinized in its entirety in order to determine its true character in pith and substance. (Great Saddelory Co,. Ltd v. The King (AIR 1921 PC 148). (ii) That after considering the legislation as a whole in pith and substance it has to be seen as to with respect to which topic or category of legislation in the various fields, it deals substantially and directly and not whether it would in actual operation affect an item in the forbidden field in an indirect way. (Subrahmanyan Chettiar v. Muttuswami Gourdan AIR 1941 PC 47). (iii) That none of the items in the lists is to be read in a narrow or restricted sense and each general word therein should be held .to extend to all ancillary and subsidiary matters Civil Appeals No.1583 to 1598 of 2014 etc. -: 41 :- which can fairly and reasonably be said to be comprehended in it. (United Provinces v. Atiqa Begum AIR 1941 FC 16). [emphasis supplied] (iv) That where there appears to be apparent overlapping in respect of the subject-matter of the impugned legislation it must first be considered whether a fair reconciliation cannot be effected by giving to the language of the federal and concurrent context bear is yet one that can properly be given to it. (Governor-General-in-Council v. Province of Madras AIR 1945 PC 98). (v) That a general power ought not to be so construed as to make a particular power conferred by the same Act arid operating in the same filed a nullity. (In re: C. P. Motor Spirit Act AIR 1939 FC 1)." (n) In Fauji Foundation and another v. Shamimur Rehman (PLD 1983 SC 457), it has been held as under: - "Item No. l as worded should be construed not in a narrow or restricted sense but in a wider sense so as to include all ancillary or subsidiary matters which can reasonably be included within it". (o) In Pakistan Industrial Development Corporation Vs. Pakistan through the Secretary, Ministry of Finance (1992 SCMR 891) after relying upon the cases of Navinchandra’s case (supra) and Mst. Atiqa Begum’s case (supra), it was held as under: - “The Constitution provides governance to the country, confers rights, privileges and liabilities on the citizens and also controls the working in all fields of life. It is a living document and is to be interpreted in a widest possible manner to ensure continuity and balance in the several constituents and organs of the State. The item in the list in respect of which the power of taxation can be exercised should not be interpreted in a restricted and pedantic manner.” (p) In Messrs Elahi Cotton Mills Ltd and others Vs. Federation of Pakistan through Secretary M/o Finance, Islamabad and 6 others (PLD 1997 SC 582) it was held as under: - "The power to levy taxes is a sine qua non for a State. In fact it is an attribute of sovereignty of a State. … The entries in the Legislative List of the Constitution are not powers of legislation but only fields of legislative heads. The allocation of the subjects to the lists is not by way of scientific or logical definition but by way of mere simple enumeration of broad catalogue. … An entry in the Legislative List must be given a very wide and liberal interpretation. It is needless to reiterate that it is a well-settled proposition of law that an entry in the Legislative List must be given a very wide and liberal interpretation. Civil Appeals No.1583 to 1598 of 2014 etc. -: 42 :- (q) In Commissioner of Sales Tax and others Vs. Hunza Central Asian Textile and Woollen Mills Ltd. and others (1999 SCMR 526) it was held as under: - 19. The Darned Attorney-General is correct in his submission that Legislative entries in a Constitution are to be interpreted liberally. This principle is well recognized and was recently confirmed by this Court in its judgment (Full Bench of 5 Judges) in the case of Elahi Cotton Mills Ltd. (PLD 1997 SC 582). While considering the term "income-tax" in Entry No.49 in Part I of the Federal Legislative List (Fourth Schedule) of the 1973 Constitution, it was observed that, from the case-law and treatises considered in the judgment, one of the principles deducible therefrom is that while construing the said word "income" used in the entry in the Legislative List, restrictive meaning cannot be applied … . While interpreting the word, it was recognized that the rule of interpretation of any entry in Legislative List is that the same should be given widest possible meaning. … 24. As observed, legislative entries should be given liberal and very wide interpretation and that the judicial approach in this regard should be dynamic rather than rigid. Another principle that has been noted in the earlier part of this judgment is that the Legislature enjoys a wide latitude in the matter of selection of persons subject-matter, events etc. for taxation. … From the perusal of above case law, the following principles of Constitutional interpretation with regard to the Entries in the legislative lists emerge: - (1) The entries in the Legislative Lists of the Constitution are not powers of legislation but only fields of legislative heads; (2) In construing the words in an Entry conferring legislative power on a legislative authority, the most liberal construction should be put upon the words. (3) While interpreting an Entry in a Legislative List it should be given widest possible meaning and should not be read in a narrow or restricted sense; Civil Appeals No.1583 to 1598 of 2014 etc. -: 43 :- (4) Each general word in an entry should be considered to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it; (5) If there appears to be apparent overlapping in respect of the subject-matter of a legislation, an effort has to be made to reconcile the Entries to give proper and pertinent meaning to them. (6) A general power ought not to be so construed so as to make a particular power conferred by the same legislation and operating in the same filed a nullity. (7) Legislation under attack must be scrutinized in its entirety to determine its true character in pith and substance; (8) After considering the legislation as a whole in pith and substance, it has to be seen as to with respect to which topic or category of legislation in the various fields, it deals substantially and directly and not whether it would in actual operation affect an item in the forbidden field in an indirect way. 15. In the light of the above principles, now we shall consider the vires of the Federal legislation i.e. IRA 2012. In this regard, the most important aspect of the matter is that there are two types of establishments/organizations/ industries; firstly, the industries, etc. functioning within the territorial limits of one Province only, and secondly, certain other establishments, etc. functioning within the territorial limits of more than one Province or even in all the four Provinces as well as the Federal Civil Appeals No.1583 to 1598 of 2014 etc. -: 44 :- Capital Territory. Now the moot question arises whether, notwithstanding the fact that the authority to legislate with regard to the matters concerning the trade unions and unfair labour practices vests with the Federal Legislature or not, a Provincial legislature can legislate with regard to the trade union/establishments functioning at trans-provincial level. In this regard it is to be noted that Article 97 of the Constitution provides that “subject to the Constitution, the executive authority of the Federation shall extend to the matters with respect to which the both Majlis-e-Shoora (Parliament) has power to make laws, including exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan”. Under the said Article, the executive authority of the Federation is not restricted to the areas within Pakistan but also extended in relation to the areas outside Pakistan. However, as per proviso thereto, “the said authority shall not, save as expressly provided in the Constitution or in any law made by Majlis-e-Shoora (Parliament), extend in any Province to a matter with respect to which the Provincial Assembly has also power to make laws”. Under Article 137 of the Constitution, “subject to the Constitution, the executive authority of the Province shall extend to the matters with respect to which the Provincial Assembly has power to make laws”. As per proviso thereto, “in any matter with respect to which both Majlis-e- Shoora (Parliament) and the Provincial Assembly of a Province have power to make laws, the executive authority of the Province shall be subject to, and limited by, the executive authority expressly conferred by the Constitution or by law made by Majlis-e-Shoora (Parliament) upon the Federal Government or authorities thereof”. Further, as per Article 141 of the Constitution, “subject to the Constitution, Majlis-e- Civil Appeals No.1583 to 1598 of 2014 etc. -: 45 :- Shoora (Parliament) may make laws (including laws having extra- territorial operation) for the whole or any part of Pakistan, and a Provincial Assembly may make laws for the Province or any part thereof”. Under Article 142 of the Constitution, the Parliament has exclusive power to make laws with respect to (1) any matter in the FLL, (2) criminal law, criminal procedure and evidence and (3) all matters pertaining to such areas in the Federation as are not included in any Province; whereas, a Provincial Assembly has power to make laws with respect to (1) criminal law, criminal procedure and evidence and (2) any matter not enumerated in the FLL. Under Article 232(2) of the Constitution, in case of emergency, the Legislative authority of the Federation extends to enacting laws for a Province, or any part thereof, with respect to any matter not enumerated in the FLL. Thus, from the above provisions of the Constitution it is clear that the Federal Legislature has extra-territorial authority to legislate, but no such extra-territorial authority has been invested with the Provincial Legislature. Thus, the Provincial Legislature has no legislative competence to legislate law regulating the trade unions functioning at trans-provincial level. Needless to observe that to deal with such a matter, the Constitution itself has provided a mechanism i.e. entries No.58 and 59 in Part-I of FLL, whereby the Federal Legislature has been mandated to legislate in order to preserve and regulate a right, which in its exercise transcends provincial boundaries, especially one guaranteed under Article 17 of the Constitution. The scope of Entries No.58 and 59 shall be discussed in detail at the latter part of the judgment, considering the scope of the Entries in the FLL. 16. Having decided the question regarding the legislative Civil Appeals No.1583 to 1598 of 2014 etc. -: 46 :- competence of the Provincial legislature, now we shall consider the question whether the IRA 2012 is a valid piece of legislation or not, and whether by promulgating the said Act, the Federal Legislature has gone beyond its legislative competence and encroached upon the authority of the Provincial Legislature. In this regard it is to be noted that although through the Eighteenth Amendment the CLL (Entries No.26 and 27 whereof covered the subjects, inter alia, of labour disputes and trade unions) was abolished from the Constitution, however, a new Entry No.32 in Part-I of the FLL was introduced which covered the subjects of “International treaties, conventions and agreements and International arbitration”. Previously, somewhat similar subjects were available in Entry No.3 of Part-I of the FLL, i.e. “External affairs; the implementing of treaties and agreements, including educational and cultural pacts and agreements, with other countries; extradition, including the surrender of criminals and accused persons to Governments outside Pakistan”. It has been argued by the learned counsel for the appellants that if the interpretation of Entry No.3 of Part-I of FLL as made by the learned High Courts is presumed to be correct, then the Federal legislature could enlarge its legislative powers and legislate on any subject it chooses simply because the Executive has signed a treaty in relation to that topic; this would negate the basic concept of division of powers on which our constitutional structure has been erected. In this regard it is to be noted that the Parliament through Eighteenth constitutional amendment, though abolished the CLL which contained the subjects of labour practices and trade unions (Entries No.26 and 27 of the CLL), but with conscious application of mind, through insertion of the new Entry No.32 ibid in the FLL, brought within the legislative competence of the Federal Legislature the matters relating to the Civil Appeals No.1583 to 1598 of 2014 etc. -: 47 :- international treaties, conventions, etc.; obviously, while doing so, it (Parliament) was conscious of the fact that the matters relating to trade unions and labour disputes, etc., have been dealt with and protected under the International Labour Organization’s Conventions No.87 (Convention concerning Freedom of Association and Protection of the Right to Organise) and 98 (Convention concerning the Application of the Principles of the Right to Organise and to Bargain Collectively) which are covered under Entries No.3 and 32 of Part-I of the FLL. Thus, the Federal Legislature has legislative competence to legislate in this regard to discharge the obligations created under the International Treaties and Conventions. Therefore, the IRA 2012 has been validly enacted by the Parliament. 17. Additionally, Entries No.58 and 59, which fall at the end of the Part-I of the FLL, have their own significance. These two entries are independent and unfettered. Entry No.58 ibid covers the “Matters which under the Constitution are within the legislative competence of Majlis- e-Shoora (Parliament) or relate to the Federation”. Further, Entry No.59 deals with the “Matters incidental or ancillary to any matter enumerated in this Part”. From the plain reading of these two Entries, it is clear that besides the subjects enumerated in the previous Entries, these Entries provide extended powers to the Federal Legislature; inasmuch as, by means of these Entries, the legislative competence of the Federal Legislature extends not only to the matters which under the Constitution are within the legislative competence of the Parliament but also to the matters which relate to the Federation and also the matters incidental or ancillary thereto. Thus, in addition to the matters specifically enumerated in any of the Entries in Part-I of the FLL, the matters which in some way relate to the Federation would also fall within the legislative Civil Appeals No.1583 to 1598 of 2014 etc. -: 48 :- competence of the Parliament. This interpretation also finds support from the fact that in terms of Article 141 of the Constitution, a Provincial Legislature does not possess extra-territorial legislative competence and therefore, cannot legislate with regard to a subject which in its application has to transcend the provincial boundaries. It is to be noted that as clarified by the learned High Court the resort to Entry No.58 ibid could only be made to deal with an extra-ordinary situation i.e. when a matter may fall within the legislative competence of the Province but when it comes to its application it has to travel beyond the territorial boundaries of the Province, bringing it into the domain of the Federal Legislation. Thus, it is held that the federal legislature has the competence to legislate relating to the Establishments/Trade Unions functioning at the Federal as well as trans-provincial level. 18. There is yet another Entry in Part-II of the FLL which provides the legislative authority to the Federal Legislation, namely, entry No. 13 which covers “Inter-provincial matters and co-ordination”. This Entry also has two parts, firstly, the inter-provincial matters and secondly, inter-provincial co-ordination. It is clear that under the command of this Entry too, the Federation has competence to enact laws relating to the inter-provincial matters/Trade Unions. Further, Entry No.18 thereof covers the “Matters incidental or ancillary to any matter enumerated in this Part”. This Entry further enlarges the scope of the above Entry. Thus, it is held that even on the basis of Entries No.13 and 18 ibid, the IRA 2012 is a valid piece of legislation. 19. As we have already held that the subjects of labour and trade unions fall within the scope of Entries no.3, 32, 58 and 59 of Part-I and Entry No.13 and 18 of Part-II of FLL, we do not deem it Civil Appeals No.1583 to 1598 of 2014 etc. -: 49 :- appropriate to enter into the scope of Entries No.27 and 31 as also other Entries which have been relied upon by the learned High Court to uphold the validity of Federal legislations. 20. At this juncture it is to be noted that when a provincial legislature is not competent to legislate with regard to the workmen of trans-provincial establishments, obviously the Federation has to interfere in the matter with a Federal Legislation to preserve and protect the fundamental rights of the said workmen ensured under Article 17 of the Constitution. We are in agreement with the observation made by the learned High Court that though in a Federal system, provincial autonomy means capacity of a province to govern itself without interference from the Federal Government or the Federal legislature, but as the Provincial legislature does not possess extra-territorial legislative authority i.e. it cannot legislate regarding the establishments operating beyond the territorial boundaries of that province. In absence of a Federal legislation, the right to form a trade union that can operate beyond the provincial boundaries could not be secured by any provincial law, and as such, any matter or activity of a trans-provincial nature would remain unregulated. The only solution to the above said problem is a Federal legislation. The effect of non-promulgation of IRA 2012 would be that the employer would not recognize the right of the workmen to form a countrywide trade union and carry out unified activities in his establishment at trans-provincial level; and also the number of workmen working in each unit of an establishment working in a certain Province would be counted separately which in turn would have adverse impact on the rights of the workmen, in so far as applicability of benefits and security of job granted under various labour laws are concerned as certain rights granted under various labour laws become available to Civil Appeals No.1583 to 1598 of 2014 etc. -: 50 :- the workmen depending upon the total strength of the workmen in an establishment. Needless to observe that as mentioned in its preamble, the object of promulgation of IRA 2012 is “to consolidate and rationalize the law relating to formation of trade unions, and improvement of relations between employers and workmen in the Islamabad Capital Territory and in trans-provincial establishments and industry”. Further, as per Section 3 thereof “it shall apply to all persons employed in any establishment or industry, in the Islamabad Capital Territory or carrying on business in more than one province”. Hence, the parliament in its wisdom has intentionally left it for a Province to make legislation concerning the establishments/trade unions functioning only within the limits of that Province, without transgressing the territorial limits of the said Province. Thus, neither does the IRA 2012 in any manner, defeat the object of the Eighteenth Amendment nor does it destroys or usurps the provincial autonomy or the principle on which the Federation was formed under the Constitution; rather it facilitates to regulate the right to form unions at trans-provincial level, which could not be attained through a provincial law. 21. With regard to the question about the jurisdiction of the NIRC formed under Section 25 of the Industrial Relations Act 2008 (which stood repealed w.e.f. 01.05.2010) in the interregnum till the promulgation of IRA 2012, suffice it to say that as held by this Court in Air League of Piac Employees’s case (supra) during the interregnum period w.e.f. 01.05.2010, when no Industrial Relations Law was holding the field, the workers had remedy under the ordinary laws prevailing at that time, because in absence of a special law, the ordinary/general laws come forward to fill in the vacuum. Further, the IRO 2012 does not destroy any existing right, Civil Appeals No.1583 to 1598 of 2014 etc. -: 51 :- rather by means of Section 33 thereof, all the existing rights stood preserved and protected, as such, it cannot be said that it affects any right or obligation created by other laws, including any provincial law. This Court has dealt with the issue of applicability of laws during the interregnum period when any law was repealed or declared ultra vires, and it has been repeatedly held that at the best the newly enacted law would be deemed to have retrospective effect by necessary implication because such change would only be deemed to be procedural [see: Government of N.-W.F.P. v. Said Kamal Shah (PLD 1986 SC 360) and Sarfraz v. Muhammad Aslam Khan (2001 SCMR 1062)]. The Labour Laws provide the procedure and mechanism for the resolution of disputes, registration of Trade Unions and establishment of Forum for the redressal of grievance of the labourers as well as employers, therefore, it is mainly a procedural law and in the light of the well settled principles of interpretation of Statutes, the procedural law has retrospective effect unless contrary is provided expressly or impliedly [see: Air League of Piac Employees’s case (supra)]. Thus, it is held that the IRA 2012 would be applicable retrospectively w.e.f. 01.05.2010, when the IRO 2008 ceased to exist. 22. There is yet another question involved in the matter, namely, the appellant-Shaheen Airport Services is a charitable organizations or not. It is the case of the appellant that charitable organizations are excluded from the operation of both the federal and provincial law, therefore, regardless of the question whether the appellant is a trans-provincial establishment for purposes of the federal law or whether it comes within the ambit of the provincial law, the appellant falls outside the purview of both the IRA, 2012 and the Civil Appeals No.1583 to 1598 of 2014 etc. -: 52 :- SIRA, 2013, resultantly, no trade union can be registered within the appellant. In this regard it is to be noted that the learned High Court has considered this question in detail and has held that the Federal law was applicable to Shaheen Airport Services as the same was operative in more than one Province and that Shaheen Airport Services did not qualify as a charitable organization in view of the activities that were entailed in the operation of its business. We are in agreement with the findings of the learned High Court. 23. For the foregoing reasons, the appeals as also the petition are dismissed and it is held as under: - (1) the Federal Legislature has extra-territorial authority but no such extra-territorial authority has been conferred to the Provincial Legislature by the Constitution; (2) the Federal legislature does, but the Provincial Legislature does not, have legislative competence to legislate to regulate the trade unions functioning at trans-provincial level; (3) the matters relating to trade unions and labour disputes, etc., having been dealt with and protected under the International Conventions, are covered under Entries No.3 and 32 of Part-I of the FLL. Thus, the Federal Legislature has legislative competence to legislate in this regard; (4) under the command of Entry No.13 in Part-II of the FLL, the Federation has competence to enact laws relating to the inter-provincial matters, Entry No.18 thereof further enlarges the scope of the said Entry; therefore, the Civil Appeals No.1583 to 1598 of 2014 etc. -: 53 :- Federal Legislature has legislative competence to legislate in this regard too; (5) the IRA 2012 neither defeats the object of the Eighteenth Amendment to the Constitution nor does it destroy or usurp the provincial autonomy; (6) the IRA 2012 has been validly enacted by the Parliament and is intra vires the Constitution; (7) the workers of the establishments/industries functioning in the Islamabad Capital Territory or carrying on business in more than one provinces shall be governed by the Federal legislation i.e. IRO 2012; whereas, the workers of establishments/industries functioning or carrying on business only within the territorial limits of a province shall be governed by the concerned provincial legislations; (8) as we have held that the IRA 2012 is valid piece of legislation, it is held that the National Industrial Relations Commission (NIRC) formed under Section 35 of the IRA 2012 has jurisdiction to decide the labour disputes, etc., relating to the employees/workers of companies/corporations/institutions/establishments functioning in more than one Province; (9) the IRA 2012, being a procedural law, would be applicable retrospectively w.e.f. 01.05.2010, when the IRO 2008 ceased to exist; and (10) M/s Shaheen Airport Services is not a charitable Civil Appeals No.1583 to 1598 of 2014 etc. -: 54 :- organization and IRA 2012 is applicable to it as it is operating in more than one Province. CHIEF JUSTICE JUDGE JUDGE Announced in open Court on 28.3.2018 at Islamabad. Approved for reporting Waqas/*

{'id': 'C.A.1583_2014.pdf', 'url': ''}

{'id': 'C.A.1583_2014.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, CJ MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE MUSHIR ALAM MR. JUSTICE MANZOOR AHMAD MALIK CIVIL APPEAL NOs.158 & 159/2006 (Against the judgment dated 6.1.2003 of the Lahore High Court, Rawalpindi Bench passed in W.Ps. No.542 of 1995&1220 of 1993) Zila Council Jehlum through District Coordination Officer …Appellant(s) (in both cases) VERSUS M/s Pakistan Tobacco Company Ltd. and another . . . C.A.No.158/2006 ICI Pakistan, Soda Ash Works and another . . . C.A.No.159/2006 …Respondent(s) * * * * * For the appellant(s): (in both cases) Malik Qamar Afzal, ASC For the respondent(s): Mr. Farrukh Jawad Panni, ASC (In C.A.No.158/2006) Mr. Shahid Hamid, Sr. ASC (In C.A.No.159/2006) Date of hearing: 11.2.2016. … ORDER MIAN SAQIB NISAR, J.- These appeals, by leave of the Court, entail the facts, in that, the appellant is a Zila Council constituted under the provisions of the Punjab Local Government Ordinance, 1979 (the Ordinance) and is empowered to levy and collect various taxes including goods exit tax (formerly known as export tax), whereas the respondents operate manufacturing plants of cigarettes (in CA No.158/2006) and soda ash (in CA No.159/2006) within the territorial limits of District Jhelum. The appellant had earlier levied tax on the export of goods and animals from its territorial limits on several items including the products of the respondents in accordance with Rule 5(1) read with Rule 5(5) of the Punjab Zila Council (Goods Exit Tax) Rules, 1990. Aggrieved of the said Civil Appeals No.158 & 159 of 2006 -:2:- levy, the respondents agitated the matter through the constitutional jurisdiction of the High Court, which ultimately came to this Court and was resolved [in the judgment reported as Zila Council, Jhelum Vs. I.C.I. Pakistan Ltd. (Formerly ICI Pakistan Manufacturers Limited), Khewra, District Jhelum and another (1993 SCMR 454)] as under: “As per the Notification dated 24-4-1990, referred to above, even goods in transit have been declared liable to payment of export tax if they remained in the limits of Zila Council beyond certain time limit which might have been fixed by now. As such, the burden of proof regarding each item of export of soda ash while in transit is on the exporter to satisfy the authorities of the Zila Council at the terminal that the goods are in transit and are being exported within the prescribed time limit. The impugned notification was not without lawful authority and the learned High Court has legally erred in declaring it as such.” Subsequently, the respondents again approached the High Court in its constitutional jurisdiction on the ground that despite the judgment of this Court in Zila Council, Jhelum (supra) the appellant continued to raise demands for goods exit tax even on those goods with respect to which the respondents were able to furnish proof that they remained within the territorial limits of the appellant for less than 24 hours. It was during the pendency of the said constitutional petitions that the Punjab Local Government (Fourth Amendment) Ordinance, 1996 (Ordinance II of 1996) (the Amendment Ordinance) and then the Punjab Local Government (Fourth Amendment) Act, 1996 (Act I of 1996) (the Amendment Act) were promulgated on 4.2.1996 and 21.5.1996 respectively amending the definition of ‘zila’ in the Ordinance to include urban areas for the purposes of goods exit tax. The original and the amended definition(s) of ‘zila’ are reproduced herein below:- Civil Appeals No.158 & 159 of 2006 -:3:- Original definition “3(1)(Ix) ‘zila’ means a Revenue District as notified under the Punjab Land Revenue Act, 1967 (XVII of 1967) but excluding its urban areas and Cantonment areas.” Amended definition “3(1)(Ix) ‘zila’ means the Revenue District as notified under the Punjab Land Revenue Act, 1967 (XVII of 1967) excluding its urban areas but for purposes of tax on the export of goods and animals the zila, including its urban areas; and” (Emphasis supplied) The effect of the amendment has been to bring the respondents within the territorial jurisdiction of the appellant for the purposes of goods exit tax (it is undisputed that the respondents fall within the urban areas). It is pertinent to mention that this amendment has been given retrospective effect by virtue of Section 1(2) of both the Amendment Ordinance and Amendment Act, which (sections) read as follows (as they are identical, they are being reproduced once to avoid repetition):- “1(2) It shall come into force at once and shall be deemed to have taken effect on the 1st day of July 1990.” As a result of the aforesaid developments, the respondents amended their petitions so as to challenge the amended law. It is pertinent to mention that the goods exit tax was abolished on 29.6.1999 vide the Punjab Local Government (Amendment for Abolition of Certain Taxes) Ordinance, 1999 (Ordinance XXIX of 1999) (the Abolition Ordinance). The two main questions involved in the matter before the High Court were, firstly whether the appellant was competent to levy and recover goods exit tax from the respondents on goods in transit and secondly whether the amendment could be given retrospective effect. The learned High Court has, through the impugned judgment, answered the first question Civil Appeals No.158 & 159 of 2006 -:4:- against the respondents by holding that the appellant was authorized to levy and collect goods exit tax from the respondents’ goods in transit from 21.5.1996 to 29.6.1999 (the period between the promulgation of the Amendment Act and the Abolition Ordinance), whereas in the second question, it was held that the amendment could not have been given retrospective effect. Thereafter the appellant approached this Court and leave was granted vide order dated 31.1.2006 to consider the following propositions:- “(i) Whether a legislative enactment can be promulgated with retrospective effect and if so, whether a fiscal liability can be created retrospectively? (ii) What is the effect of repeal of the amending statute within the contemplation of section 6 of the West Pakistan General Clauses Act, 1956? (iii) Whether petitioner Zila Council would be entitled to enforce the recovery of tax for the intervening period during which the law authorized it to levy and collect export tax on goods? (iv)Whether ICA was competent against the judgment rendered in these writ petitions by learned Single Judge and as to what is legal impact of not filing such appeal before a Division Bench of the High Court?” However, during the course of hearing, learned counsel for the appellant candidly conceded that the only question to be resolved in these matters is whether the amendment brought by the Amendment Ordinance would have retrospective effect or not. 2. Learned counsel for the appellant states that the goods exit tax could be validly levied and collected retrospectively in light of the judgment reported as Zila Council, Jhang, District Jhang through Administrator and others Vs. Messrs Daewoo Corporation, Kot Ranjeet, Sheikhupura through Director Contract and others (2001 Civil Appeals No.158 & 159 of 2006 -:5:- SCMR 1012) wherein the definition of ‘zila’ (as amended) was examined. He also relied on Zila Council, Sialkot through Administrator Vs. Abdul Ghani Proprietor Iqbal Brothers, Sialkot and others (PLD 2004 SC 425) and Molasses Trading & Export (Pvt.) Limited Vs. Federation of Pakistan and others (1993 SCMR 1905) to support his contention that retrospective application of a fiscal statute is permissible. He argued that where the wording of a statute is clear, the literal meaning is to be taken and since retrospective application has been expressly provided for in Sections 1(2) of the Amendment Ordinance and Amendment Act, hence the goods exit tax will take effect from 1.7.1990. Further, the only protection which could be available to the respondents is regarding past and closed transaction(s) and this has not been proved by them. Learned counsel also argued that having collected tax from the consumer, the incidence of tax has been passed onto them, and consequently the respondents cannot retain the benefit and be enriched on that account, which (benefit) was the right of the appellant. 3. Mr. Shahid Hamid, learned counsel for the respondent (in CA No.159/2006) has categorically stated that no amount was included in the bills to the consumers nor collected from them on the basis of the goods exit tax for the period prior to 21.5.1996, the date of the Amendment Act, rather the said respondent has paid all its goods exit tax from 21.5.1996 till 29.6.1999, the date of abolishment of the said tax. In support of his contention that retrospective effect cannot be given to the amending law he relied upon the judgments reported as Zila Council, Jhang (supra), Zakaria H. A. Sattar Bilwani and another Vs. Inspecting Additional Commissioner of Wealth Tax, Range-II, Karachi (2003 SCMR 271) and Molasses Trading (supra). He further argued that considering the subsequent amendments in the law which do not provide for such retrospective effect, the intent of the legislature is clear in that it did not Civil Appeals No.158 & 159 of 2006 -:6:- want retrospective application of the said tax. Learned counsel for the respondent (in CA No.158/2006) has argued that the said respondent’s product was sold at its retail price which is the maximum price and therefore, they could not and did not collect or pass on any goods exit tax to the consumer (unlike sales and/or excise tax). He further submitted that any enactment passed during the pendency of a case would not apply to such a case unless clearly provided in the enactment itself. In this regard reliance was placed upon Muhammad Hussain and others Vs. Muhammad and others (2000 SCMR 367), Nabi Ahmed and another Vs. Home Secretary, Government of West Pakistan, Lahore and 4 others (PLD 1969 SC 599) and Income-Tax Officer, Central Circle II, Karachi and another Vs. Cement Agencies Ltd. (PLD 1969 SC 322). 4. Heard. As conceded by the learned counsel for the appellant the foundational question involved in these cases is whether the goods exit tax could be levied and collected retrospectively by virtue of the Amendment Ordinance and Amendment Act. In order to answer this question, we find it necessary to elucidate the law regarding interpretation of fiscal statutes and retrospective operation of laws. Although the Legislature can legislate prospectively and retrospectively, such power is subject to certain constitutional and judicially recognised restrictions. According to the canons of construction, every statute including amendatory statutes is prima facie prospective, based on the principle of nova constitutio futuris formam imponere debet, non praeteritis (which means ‘a new law ought to regulate what is to follow, not the past’ as per Osborn: Concise Law Dictionary); unless it is given retrospective effect either expressly or by necessary implication. In other words, a statute is not to be applied retrospectively in the absence of express enactment or necessary intendment, especially where the statute is to affect vested rights, past and closed transactions or facts or events that have already occurred. Civil Appeals No.158 & 159 of 2006 -:7:- This principle(s) is attracted to fiscal statutes which have to be construed strictly, for they tend to impose liability and are therefore burdensome (as opposed to beneficial legislation). Furthermore, it is not only the wording/text of the statute which is to be considered in isolation; we are not to examine simpliciter whether such law has a retrospective effect or not, rather it has to be examined holistically by considering several factors such as, the dominant intention of the legislature which is to be gathered from the language used, the object indicated or the mischief meant to be cured, the nature of rights affected, and the circumstances under which the statute is passed. A bare reading of the Amendment Ordinance and the Amendment Act including the preamble and particularly Section(s) 1(2) (reproduced above), which is the section providing for retrospective effect, does not reflect a clear intendment or a rationale for the levy and collection of goods exit tax retrospectively through amendment of the definition of ‘zila’ so as to include urban areas. Rather, such amendment is a precise indication of the fact that it was perhaps done to fill in a supposed lacuna which developed as a result of this Court’s judgment in Zila Council, Jhelum (supra) whereby entities including the respondents who fell outside the territorial limits of the appellant could avoid payment of goods exit tax by establishing that their goods-in-transit remained within the territorial limits of the appellant for less than 24 hours. It may be pertinent to mention here that according to the settled rules of interpretation of a fiscal part of a statute, the charging section is the key and pivotal provision which imposes a fiscal liability upon a taxpayer/person, thus it should be strictly construed and applied. If a person does not clearly fall within the four corners of the charging section of such a statute he cannot be saddled with a tax liability. Thus, mere amendment of the definition clause of 3(1)(Ix) of the Ordinance and Civil Appeals No.158 & 159 of 2006 -:8:- inclusion of the urban areas as a part of a zila for the purposes of goods exit tax, with effect from 1.7.1990 does not express a clear intent. For expression of clear intent it would be necessary to change the relevant charging provision for the purposes of retrospective tax liability. The change ibid, restricted as it is to a change in the definition clause, cannot be considered to reflect the requisite intendment of the legislature to impose the said tax with retrospective effect. Reliance may be placed upon the case cited as Nagina Silk Mill, Lyallpur Vs. The Income Tax Officer, a-Ward Lyallpur (PLD 1963 SC 322) wherein a five member bench of this Court held as under:- “The Court must lean against giving a statute retrospective operation on the presumption that the Legislature does not intend what is unjust. It is chiefly where the enactment would prejudicially affect vested rights, or the legality of past transactions, or impair existing contracts, that the rule in question prevails. Reference may be made in this connection to page 206 of Maxwell on the Interpretation of Statutes, Eleventh Edition. Even if two interpretations are equally possible, the one that saves vested rights would be adopted in the interest of justice, specially where we are dealing with a taxing statute.” Reliance placed upon the Molasses Trading case (supra) by the learned counsel for the appellant is misplaced as that case involved the interpretation and retrospectivity of the charging sections itself, which is not the situation in the instant matters. Furthermore, the law recognises that provisions of statute should not be read in a way that would lead to obliteration of rights and liabilities that have accrued as a result of past and closed transactions. In this respect this Court has held in Province of East Pakistan Vs. Sharafatullah (PLD 1970 SC 514) as under:- “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 Civil Appeals No.158 & 159 of 2006 -:9:- provided are not to be disturbed by a general law governing future rights and liabilities unless the law so intends.” In the case of Molasses Trading (supra), a five member bench of this Court by a three to two majority, was of the opinion that since the Bills of Entries of the imported goods were presented prior to 1.7.1988 which was the date on which Section 31-A of the Customs Act, 1969 (which section essentially provided for a rate of duty applicable to certain goods) was enacted and enforced, thus they were past and closed transactions which could not be destroyed or reopened by applying Section 31-A ibid retrospectively. In this regard the Court held:- “Inevitably therefore a vested right has been created and the transaction is closed by the quantification of the tax, if any, or by the discharge of liability on that date…Viewed in this perspective, if effect is given to the provisions of section 31-A so as to undo the discharge of the liability which had already taken effect, it will amount to re-opening a past and closed transaction. The simple reason is that under the existing law there was no further liability to pay the tax and by giving retrospective operation to the new dispensation a liability is being created for the payment of the tax. I cannot see anything in the language of section 31-A, expressly or by necessary intendment, to that effect. Such result is therefore not a necessary corollary of the fiction created by the deeming provisions of section 5 of the Finance Act, 1988. Otherwise also it will be contrary of the principle, mentioned above, namely, that liabilities once fixed or rights created by operation of law upon facts or events, must not be disturbed by a general provisions given retrospective effect unless such intention is clearly manifested by the language employed.” In any event, as the goods of the respondents have come and gone through the terminals of the appellant in transit over several years and such goods having passed through numerous hands and being sold to Civil Appeals No.158 & 159 of 2006 -:10:- various persons including wholesalers, retailers and consumers culminating into several binding contracts prior to the amendment in the definition of ‘zila’, thus this is clearly a fit case of past and closed transaction(s) and it has been conceded by the learned counsel for the appellant that a past and closed transaction cannot be reopened by a retrospective interpretation of the impugned provision (subject to the clear, unequivocal and explicit intention of the Legislature which as we have held above is not the case in the instant matters). Viewed from this perspective, we are not persuaded to give such effect to the provisions of the amended law so as to undo all of the concluded transactions mentioned above as it would amount to re- opening of past and closed transactions and that would disrupt of rights and liabilities that have been created in the past. We observe that the finding of the learned High Court in this regard is correct. 5. With respect to the reliance placed upon Zila Council, Jhang case (supra) by the learned counsel for the appellant, suffice it to say that the following opinion of the judgment goes against the appellant, which is reproduced as under:- “…thus, the question of its realization with effect from 1.7.1990 does not arise because retrospective effect could be given to the definition of ‘Zila’ but no liability can be created retrospectively.” (Emphasis supplied) As far as the case of Zila Council, Sialkot (supra) is concerned, it may be mentioned that the earlier view of this Court in Muhammad Hussain’s case (supra) has not been taken into account, wherein while interpreting the provisions of an identically phrased section (except for the date) of an amendatory statute giving retrospective effect to an amendment, the Court came to the conclusion that:- Civil Appeals No.158 & 159 of 2006 -:11:- “However, the question which arises for consideration is, whether the words used in section 1(2) of Act X of 1992 are wide enough to take away the vested rights or to undo past and closed transactions. In our view, by merely providing in subsection (2) of section 1 ibid that the “provisions of the Act shall be deemed to have taken effect from 31-12-1991”, the suits already filed in accordance with the existing provision of section 31 of Act of 1987 could not be rendered not- maintainable.” Obviously, on this account the judgment of Zila Council, Sialkot (supra) is per incuriam, as it has failed to take into consideration the principles of interpretation laid down by this Court to the effect that while the Legislature can enact statutes retrospectively, where the vested rights of certain persons may be affected, such retrospective enactments must be construed strictly. This principle has been succinctly enunciated by the five member bench of this Court in Muhammad Hussain (supra) as follows:- “It is a well-settled principle of interpretation that there is a strong presumption against the retrospectivity of a legislation which touches or destroys the vested rights of the parties. No doubt the Legislature is competent to give retrospective effect to an Act and can also take away the vested rights of the parties, but to provide for such consequences, the Legislature must use the words which are clear, unambiguous and are not capable of any other interpretation or such interpretation follows as a necessary implication from the words used in the enactment. Therefore, while construing a legislation which has been given retrospective effect and interferes with the vested rights of the parties, the words used therein must be construed strictly and no case should be allowed to fall within the letter and spirit of Act which is not covered by the plain language of the legislation.” Additionally, the learned counsel for the appellant has not been able to show us any evidence to the effect that any amount(s) of the disputed tax Civil Appeals No.158 & 159 of 2006 -:12:- was/were collected by the respondents from the consumers on the basis of goods exit tax for the period prior to 1.7.1996. Even otherwise, we find it contrary to logic and fail to understand as to how the respondents could have conceivably collected from and thereby passed on the incidence of such tax to the consumers, when it was not even levied and payable as per the law at that time (prior to the amendment) by the respondents who, being in the urban areas, stood excluded from the territorial ambit of the appellant as per the earlier definition of ‘zila’. 6. In view of the foregoing, we find that the goods exit tax cannot be levied with retrospective effect in the circumstances, and the learned High Court was correct in so holding. 7. For the aforesaid detailed reasons the appellant’s civil appeals were dismissed vide short order of even date, which reads as:- “Arguments heard. For reasons to be recorded separately, these appeals are dismissed.” CHIEF JUSTICE JUDGE JUDGE JUDGE JUDGE Islamabad, the 11th February, 2016 Approved For Reporting Ghulam Raza/*

{'id': 'C.A.158_2006.pdf', 'url': ''}

{'id': 'C.A.158_2006.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE FAISAL ARAB CIVIL APPEALS NO.1590 TO 1598 OF 2006 (Against the judgment dated 1.9.2005/22.3.2006/16.2.2006/ 29.3.2006/8.3.2006/14.4.2006/2.5.2006/5.4.2006/26.4.2006 of the High Court of Sindh, Karachi passed in ITR No.13/1999, 133/1997, 38/1998, 173/1997, 949/1999, 22/1993, 459/1990, 56/1995 & ITC No.410/1997) Commissioner of Income Tax Karachi …Appellant(s) (In all cases) VERSUS M/s Khalid Textile Mills In C.A.1590/2006 M/s Karachi Electric Supply Corporation In C.A.1591/2006 M/s Gulistan Textile Mills Ltd. In C.A.1592/2006 M/s Gul Ahmed Textile Mills Ltd. In C.A.1593/2006 M/s Faran Sugar Mills Ltd. In C.A.1594/2006 M/s Mehran International Ltd. In C.A.1595/2006 M/s National Printing & Packing Ltd. In C.A.1596/2006 M/s Pfizer Laboratories Ltd. In C.A.1597/2006 M/s Dewan Textile Mills Ltd. In C.A.1598/2006 …Respondent(s) For the appellant(s): Dr. Farhat Zafar, ASC (In CA No.1590/2006) Mr. Muhammad Habib Qureshi, ASC Raja Abdul Ghafoor, AOR (In CAs No.1591 to 1594/2006) Mr. Muhammad Siddique Mirza, ASC (In CA No.1595/2006) For the respondent(s): Mr. Iqbal Salman Pasha, ASC (In CAs No.1590, 1591, 1593 to 1595, 1597 & 1598/2006AH32) Ex-parte (In CAs No.1592 & 1596/2006) Dates of hearing: 7.2.2017 & 8.2.2017 … ORDER MIAN SAQIB NISAR, CJ.- The question before this Court is whether tax credit(s) available under Section 107 of the erstwhile Income Tax Ordinance, 1979 (the Ordinance) were to be excluded while Civil Appeal No.1590 of 2006 etc. -: 2 :- computing the actual cost of an asset in order to determine it’s written down value for the purposes of calculating depreciation allowance in terms of Rule 8(8)(b) of the Third Schedule to the Ordinance. . 2. The brief facts (in Civil Appeals No.1590 to 1592 and 1595 to 1597/2006) are that the respondents (assessees) are companies (both public and private limited) deriving income from various industrial activities. In their returns pertaining to various assessment years, they claimed tax credit(s) and depreciation allowance under the Ordinance on their plants and machinery. The assessment orders calculated the depreciation allowance after subtracting tax credit(s) from the written down value of the assets, thereby curtailing the respondent’s claim of depreciation allowance (note:- in Civil Appeal No.1597/2006, in the original assessment order, depreciation allowance was calculated without subtracting tax credit. However when the original assessment was re-opened under Section 66-A of the Ordinance, Inspecting Assistant Commissioner of Income Tax ordered that depreciation allowance be calculated after subtracting tax credit from the written down value of the assets, thereby curtailing the respondent’s claim of depreciation allowance). The learned High Court passed the impugned judgments in Income Tax references (references) in favour of the respondents by relying upon Gulshan Spinning Mills Ltd. and others Vs. Government of Pakistan and others (2005 PTD 259) (note:- in Civil Appeal No.1595/2006, the learned High Court relied upon the impugned judgment rendered in Civil Appeal No.1590/2006, i.e. ITR No.13/1999). This Court granted leave vide order dated 5.10.2006 to consider the following:- “(i) Whether on the facts and circumstances of this case Hon’ble High Court and Income Tax Appellate Tribunal was justified in holding that assessee in (sic) entitled to depreciation calculated on the W.D.V. of assets without reducing there from (sic) the amount of tax credit u/s 107 of the Income Tax Ordinance, 1979, despite of Civil Appeal No.1590 of 2006 etc. -: 3 :- specific provision as laid down under rule 8(8)(b) of 3rd Schedule of the Income Tax Ordinance, 1979. (ii) Whether on the facts and circumstances of this case Hon’ble High Court after holding that tax credit u/s 107 not being in the nature of exemption, allowance and deduction, has rightly allowed to exclude tax credit from depreciation calculated on the W.D.V. of assets under rule 8(8)(b) of 3rd Schedule of the Income Tax Ordinance, 1979.” It bears mention that leave in these cases was granted on the basis of the leave granting order dated 14.6.2005 passed in Civil Appeal Nos.612 to 636/2005 and although the noted cases were disposed of vide order dated 3.4.2008 that was done on the basis of the parties’ consent. Therefore, the aforementioned question of law remains to be determined by this Court. 3. Learned counsel for the appellant department (in Civil Appeal Nos.1591 to 1594/2006) argued that tax credit applicable on plant and machinery under Section 107 of the Ordinance fell within the expression “value of assistance” received by an assessee from Government or any other authority or person appearing in Rule 8(8)(b) which (expression) had a wide connotation and the only type of assistance it specifically excluded was that of any loan repayable with or without interest. He submitted that Rule 8(8)(b) applied to tax credits under Section 107 and therefore the impugned judgments were liable to be set aside. According to him, when an assessee claimed tax credit at the rate of 15% of the assets, the actual cost of the asset to the assesse was accordingly reduced, as in terms of Rule 8(7)(b) the written down value was to be calculated on the basis of the actual cost to the assessee and not the total cost of the asset. His arguments were adopted by the Civil Appeal No.1590 of 2006 etc. -: 4 :- learned counsel for the appellant in Civil Appeal Nos.1590/2006 and 1595/2006. 4. Learned counsel for the respondents (in Civil Appeal Nos.1590, 1591, 1593 to 1595, 1597 and 1598/2006) argued that tax credit under Section 107 was claimed on the actual cost of plant and machinery which was to be deducted from the tax payable for the year and not from the taxpayer’s income, therefore, tax credit was not a grant, subsidy, rebate, commission, deduction or allowance under the Ordinance. According to him, the learned High Court rightly held that Rule 8(8)(b) was not applicable to tax credits under Section 107. He relied on the case of Gulshan Spinning Mills (supra). 5. Heard. The relevant portions of Section 107 and Rule 8 (of the Third Schedule) of the Ordinance are reproduced as under:- “107. Tax credit for replacement, balancing and modernisation of machinery or plant.- (1) Where an assessee being a Pakistani company invests any amount in the purchase of plant and machinery for installation at any time between the first day of July, 1976 and the thirtieth day of June, 1988 or between the first day of July, 1990 and the thirtieth day of June, 1991, in an industrial undertaking set up in Pakistan and owned by it, for the purposes of replacement, balancing or modernisation of the machinery and plant already installed therein, credit at the rate of fifteen per cent of the amount so invested shall be allowed against the tax payable by it in the manner hereinafter provided. Explanation.- As used in this sub-section,- (a) "amount", in case of plant and machinery acquired on lease, means the amount expended by the lessor in the purchase of the said plant and machinery; and (b) "purchase of plant and machinery" includes acquisition of plant and machinery on lease from a scheduled bank, a financial institution or a leasing Civil Appeal No.1590 of 2006 etc. -: 5 :- company on such terms and conditions as may be approved by the Central Board of Revenue. (2) The amount of credit admissible under this section shall be deducted from the tax payable by the assessee in respect of the income year in which the machinery or plant in the purchase of which the amount referred to in sub-section (1) is invested is installed. (3) ………………………………………………………… (4) The provisions of sub-section (1) and (2) shall also apply in the like manner to any plant and machinery installed, for the purposes of extension of the industrial undertaking:- (i) on or after the first day of July, 1978, and before the thirtieth day of June, 1983 in the territories of Pakistan; or (ii) on or after the first day of July, 1983, in the territories of Pakistan (excluding Talukas of Karachi and Hyderabad, and Tehsils of Faisalabad and Lahore, and such adjoining areas of Lahore Tehsil as may be notified in this behalf by the Federal Government). ⁞ (8) ………………………………………………………… THE THIRD SCHEDULE (See Section 23) RULES FOR THE COMPUTATION OF DEPRECIATION ALLOWANCE 1. Allowances for depreciation. (1) Where, in any income year, any building, machinery, plant or furniture owned by an assessee is used for purposes of any business or profession carried on by him…an allowance for depreciation shall be made in computing the profits and gains of the business or profession of the assessee in the manner hereinafter provided. 8. Definitions.- For the purpose of this Schedule,- (7) "written down value" means- Civil Appeal No.1590 of 2006 etc. -: 6 :- (a) in the case of a ship or any asset to which sub-rule (3) of rule 2 applies,- (i) for purpose of rule 7, as in sub-clause (b), and (ii) for any other purpose, the actual cost thereof to the assessee; and (b) in the case of other assets,- (i) where the asset, was acquired in the income year, the actual cost thereof to the assessee; and (ii) where the asset, was acquired before the income year, the actual cost thereof to the assessee as reduced by the aggregate of the allowance for depreciation allowed to him under this Ordinance or the repealed Act in respect of the assessments for earlier years. (8) For the purposes of clause (7),- (a) ……………………………; (b) in computing the actual cost of an asset, the amount of any grant, subsidy, rebate or commission and the value of any assistance (not being in the nature of any loan repayable with or without interest) received by an assessee from Government or any other authority or person and any deduction or allowance admissible under this Ordinance or the repealed Act shall be excluded; ⁞ (h) …………………………………………………… Explanation……………………………………………” 6. Chapter X of the Ordinance, particularly Sections 105 to 107AA, which pertained to tax credits for various types of investments, is instructive in this regard. A tax credit is an incentive or relief given to the taxpayer, usually for the purposes of promoting certain industries or activities. Section 107 of the Ordinance allowed for tax credit at the rate of 15% of the amount invested for the replacement, balancing and modernization of machinery or a plant against the tax payable. Civil Appeal No.1590 of 2006 etc. -: 7 :- According to Section 107(2) the amount of credit was to be deducted from the tax payable by the assessee in respect of the income year in which the said machinery or plant was installed. Tax credit was not defined in the Ordinance. Black’s Law Dictionary (9th Ed.) defines it as “an amount subtracted directly from one’s total tax liability, dollar for dollar, as opposed to a deduction from gross income”. P. Ramanatha Aiyar’s Concise Law Dictionary (4th Ed.) states, “Tax credit is a legal provision permitting taxpayers to deduct specified sums from their tax liability”. The Oxford Advanced Learner’s Dictionary of Current English (8th Ed.) provides that tax credit is “money that is taken off your total tax bill”. Thus tax credit is an amount which is directly offset against or adjusted/deducted from the tax liability and not the gross income. 7. The relevant provision with regard to depreciation allowance was Section 23(1)(v) of the Ordinance according to which for the purposes of computing income under the head “income from business or profession”, certain allowances and deductions were admissible in terms of the Third Schedule in respect of depreciation; including First Year Allowance or Reinvestment Allowance or Industrial Building Allowance, of any building, machinery, plant, furniture or fittings, being the property of the assessee, except depreciation or First Year Allowance on assets given on lease which was to be allowed against income from lease rentals only, and such depreciation allowance was to be computed in terms of the rules in the Third Schedule. In similar terms, Rule 1 of the Third Schedule provided that where, in any income year, any building, machinery, plant or furniture owned by an assessee was used for purposes of any business or profession carried on by him, or in any income year commencing on or after the first day of July, 1982, any machinery or plant was given on lease by the assessee, being Civil Appeal No.1590 of 2006 etc. -: 8 :- a scheduled bank, a financial institution (or such modaraba or leasing company as is) approved by the Central Board of Revenue for purposes of the Third Schedule, an allowance for depreciation would be made in computing the profits and gains of the business or profession of the assessee. Rule 2 of the Third Schedule stipulated the various rates at which depreciation allowance was admissible, which was a certain percentage of the written down value of the asset. Rule 8 of the Third Schedule contained the definitions of various words which were “For the purpose of this [Third] Schedule” and Clause (7) thereof defined “written down value” as reproduced above which was either the actual cost thereof to the assessee or the actual cost thereof to the assessee reduced by the depreciation allowance for assets acquired before the income year in question. The actual cost of the asset to the assessee was elucidated and clarified in Clause (8) which began with the phrase “For the purposes of clause (7)”. Part (b) thereof stipulated that in computing the actual cost of an asset, the following were to be excluded:- i. the amount of any grant, subsidy, rebate or commission and the value of any assistance (not being in the nature of any loan repayable with or without interest) received by an assessee from the Government or any other authority or person; and ii. any deduction or allowance admissible under this Ordinance or the repealed Act. The word “excluded” needs to be elucidated. According to Chambers 21st Century Dictionary (2007), “exclude” means “to omit someone or something or leave them out of consideration” while “excluding” means “not counting; without including”. The Oxford Advanced Learner’s Dictionary of Current English (8th Ed.) defines “exclude” as “to deliberately not include Civil Appeal No.1590 of 2006 etc. -: 9 :- [something] in what you are doing or considering”. In the light of the aforementioned definitions, exclude essentially means to remove from consideration. The implication of this is significant. It means that the amount of any grant, subsidy, rebate, or commission, and the value of any assistance (not in the nature of any loan repayable with or without interest) received by an assessee from the Government or any other authority or person, and any deduction or allowance admissible under this Ordinance (or the repealed Act) were not to be considered while computing the actual cost of an asset. Therefore the interpretation adopted by the learned counsel of both the parties to the effect that excluded meant deducted or subtracted is absolutely incorrect and misconceived. 8. The question is whether tax credit fell within the ambit of Rule 8(8)(b) in the Third Schedule of the Ordinance in that it was not to be considered while computing the actual cost of an asset. Rule 8(8)(b) of the Third Schedule can be bifurcated into two parts as highlighted in the preceding paragraph. The first part pertains to the amount of any grant, subsidy, rebate or commission and the value of any assistance (not being in the nature of any loan repayable with or without interest) received by an assessee from Government or any other authority or person. In our view tax credit does not fall within the domain of any of the these terms, i.e. grant, subsidy, rebate, commission or the value of any assistance by dint of the fact that they are not benefits received by an assessee under the Ordinance but received otherwise from the Government or any other authority or person. It is the second part of Rule 8(8)(b) which related to any deduction or allowance admissible under the Ordinance (or the repealed Act). We now need to determine whether tax credit fell within the second part of Rule 8(8)(b), i.e. was it a deduction or allowance admissible under the Ordinance? Civil Appeal No.1590 of 2006 etc. -: 10 :- 9. Section 24 of the Ordinance categorically set out those deductions which were not admissible under the Ordinance and therefore did not fall within the ambit of Rule 8(8)(b). However various types of deductions were allowed under the Ordinance. By way of illustration, Sections 18, 20, 23 and 31 pertained to deductions to be made whilst computing income under the heads interest on securities, income from house property, income from business or profession and income from other sources respectively. These were deductions made to the total taxable income. According to Section 107(2) of the Ordinance, the amount of credit admissible under Section 107 “shall be deducted from the tax payable by the assessee…” [Emphasis supplied]. Therefore whilst tax credit is undoubtedly a deduction, it is made against the tax payable as mentioned in paragraph 6 of this opinion. It is pertinent to note that Rule 8(8)(b) did not make any distinction between deductions from the taxable income and deductions from the tax payable. The test was only that of “any deduction…admissible under the Ordinance” (or the repealed Act) and we are of the view that tax credit is a deduction albeit from the tax payable [Section 107(2)] and being admissible under the Ordinance (Section 107) it clearly fell within the ambit of Rule 8(8)(b) of the Third Schedule. Therefore, the key question identified in the opening paragraph of this opinion is answered in the affirmative, in that, tax credit available under Section 107 of the Ordinance did fall within the purview of Rule 8(8)(b) of the Third Schedule to the Ordinance and thus was to be excluded or rather not to be considered while computing the actual cost of an asset when determining the written down value thereof for the purposes of calculating depreciation allowance. Civil Appeal No.1590 of 2006 etc. -: 11 :- 10. In the case of Gulshan Spinning Mills (supra) relied upon by the learned counsel for the respondents and the learned High Court in the impugned judgments it was held that:- “…tax credit is neither an allowance nor deduction permissible under the Income Tax Ordinance, 1979, for the purpose of determining the total income (assessed income). It is not in the nature of exemption as well. Anything in the nature of exemption, allowance or deduction shall form part of the assessment order and this, shall be integral part of the assessment process and therefore, shall be allowed in accordance with law prevailing in the assessment year. As held above, the tax credit under section 107 of the Income Tax Ordinance, is not in the nature of exemption, allowance or deduction for the purpose of computing the income under the head business or profession, therefore, it shall not be a part of assessment process/assessment order.” A perusal of the aforesaid extract makes it clear that the reference to tax credit under Section 107 of the Ordinance in the said case was with respect to the determination of total taxable income and not the written down value of an asset for the purposes of depreciation allowance. The issue at hand and the interpretation of Rule 8(8)(b) of the Third Schedule was not under consideration in the case of Gulshan Spinning Mills (supra). 11. In the light of the above, Civil Appeals No.1590 to 1592 and 1595 to 1597/2006 are dismissed. As regards Civil Appeals No.1593, 1594 and 1598/2006, the issue involved (particularly before the learned High Court in the tax references) was not whether tax credit should be considered while calculating the written down value for the purposes of determining depreciation allowance. Rather, the moot point was whether the dates of installation of the plant and machinery were relevant for the purposes of claiming tax credit Civil Appeal No.1590 of 2006 etc. -: 12 :- under Section 107 of the Ordinance, and not the date of purchase thereof. This was the precise issue decided by the learned High Court in Gulshan Spinning Mills (supra), however this was neither brought to the attention of this Court during the leave granting stage and nor have we received any assistance on this point, therefore the leave granting order(s) in the noted cases are withdrawn and the petitions are accordingly dismissed as no point requiring the grant of leave has been made therein. CHIEF JUSTICE JUDGE JUDGE Announced in open Court on 29.3.2017 at Islamabad Approved For Reporting Waqas Naseer/*

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE FAISAL ARAB MR. JUSTICE TARIQ PERVEZ CIVIL APPEAL NO. 1600 OF 2006 (On appeal against the judgment dated 8.3.2006 passed by the High Court of Sindh, Karachi in C.P Nos. 223, 224, 225 & 226 of 2003) Indus Trading and Contracting Company … Appellant VERSUS Collector of Customs (Preventive) Karachi and others … Respondents For the Appellant: Mr. Issaq Ali Qazi, ASC For the Respondent (1): Raja Muhammad Iqbal, ASC Raja Abdul Ghafoor, AOR For Respondents (2-3): Ex-parte Date of Hearing: 04.01.2016 JUDGMENT FAISAL ARAB, J.-Brief facts of this appeal are that at the end of 1995 and early 1996, the appellant imported two consignments of medicines said to be living saving drugs. The import of such drugs was free from Customs duty on the basis of the concession granted under the Finance Act of 1995. Before these consignments arrived at the port, the Federal Government issued SRO No. 1050(1)/95 dated 29th October, 1995 imposing 5% ad valorem regulatory duty which the appellant paid and got the consignments released. Subsequently, the appellant challenged the levy of regulatory duty on the consignments in Constitution Petition No. D-1659/1996 that was filed in the High Court of Sindh. Thereafter, on Civil Appeal No. 1600/2006 2 07.08.2002, the appellant withdrew it after seeking permission to file it afresh. A couple of months later, the appellant filed another constitution petition bearing No. D-226/2003 challenging the imposition of the same regulatory duty. This petition was dismissed vide impugned judgment dated 08.03.2006, after holding regulatory duty was rightly charged on goods exempted from customs duty. The appellant then turned to this Court for relief in the present proceedings. 2. Learned counsel for the appellant, Mr. Issaq Ali Qazi argued that as long as import of such goods is free from duty on the basis of the concession granted under the Finance Act, 1995, no duty, much less regulatory duty, could have been lawfully charged and the imposition of regulatory duty under the impugned SRO No. 1050(1)/95 being based on subordinate legislation was therefore illegal. He maintained that that imposition of regulatory duty in effect nullified the concession of duty free import that was granted under the provisions of Finance Act, 1995. He further submitted that had the customs duty on such drugs and medicines been zero-rated probably then the regulatory duty could have been levied but as the import was free from customs duty, no duty under any nomenclature could be lawfully imposed and the learned Judges in the High Court failed to appreciate such distinction. He concluded by submitting that this Court may order refund of the regulatory duty that had been unlawfully charged from the appellant at the import stage on the consignments in question. Civil Appeal No. 1600/2006 3 3. On the other hand, learned counsel for the respondent No. 1 argued that the regulatory duty was charged and paid by the appellant as far back as 1995 without any protest and thereafter no departmental proceedings were initiated by it to challenge the same. He submitted that even the first Constitution petition was withdrawn after the decision of this Court in the case of Collector of Customs Vs. Ravi Spinning Ltd (1999 SCMR 412) which validated levy of regulatory duty, hence this appeal is liable to be dismissed. 4. Before examining the merits of the case, we find it necessary to state that at the stage when regulatory duty was charged, the appellant ought to have challenged the same before the forum provided under the Customs Act. Instead of doing that, the appellant invoked the jurisdiction of the High Court under Article 199(1) of the Constitution of Pakistan. Ordinarily, the jurisdiction of the High Courts under Article 199 of the Constitution should not be invoked where alternative forum under a special law, duly empowered to decide the controversy is available and functioning. Where a special law provides legal remedy for the resolution of a dispute, the intention of the legislature in creating such remedy is that the disputes falling within the ambit of such forum be taken only before it for resolution. The very purpose of creating a special forum is that disputes should reach expeditious resolution headed by quasi judicial or judicial officers who with their specific knowledge, expertise and experience are well equipped to decide controversies relating to a particular subject in a shortest possible time. Therefore, in spite of such remedy being made available under the Civil Appeal No. 1600/2006 4 law, resorting to the provisions of Article 199(1) of the Constitution, as a matter of course, would not only demonstrate mistrust on the functioning of the special forum but it is painful to know that High Courts have been over-burdened with a very large number of such cases. This in turn results in delays in the resolution of the dispute as a large number of cases get decided after several years. These cases ought to be been taken to forum provided under the Special law instead of the High Courts. Such bypass of the proper forum is contrary to the intention of the provisions of Article 199(1) of the Constitution which confers jurisdiction on the High Court only and only when there is no adequate remedy is available under any law. Where adequate forum is fully functional, the High Courts must deprecate such tendency at the very initial stage and relegate the parties to seek remedy before the special forum created under the special law to which the controversy relates. We could have relegated the appellant to seek remedy before the appropriate forum, however, as the dispute in the present case is now more than twenty years old, we for this reason only as matter of indulgence, proceed to decide the controversy on its merits. 5. Under Section 18 of the Customs Act, 1969, customs duties are levied under different nomenclatures. Under Section 18(1) statutory customs duty is imposed whereas under Section 18(2) (after amendment regulatory duty is covered under Section 18(3) of the Customs Act) the legislature has empowered the Federal Government to impose regulatory duty through notifications. Therefore, statutory duty under Section 18(1) and Civil Appeal No. 1600/2006 5 regulatory duty under Section 18(2) are two distinct categories of duties. One should not be taken to be the same as the other. It is by now well settled by the judicial pronouncements of this Court that where import or export of any commodity enjoys exemption from statutory customs duty, even then the Federal Government can impose regulatory duty, within the confines described in Section 18(2) of Customs Act through sub-ordinance legislation. Where the legislature grants exemption from the payment of customs duty that falls under Section 18(1), the same cannot be made basis to avoid payment of regulatory duty imposed subsequently unless there is also a promise that such concession would also be applied to regulatory duty in case it is levied in future. As the exemption in the present case does not contain such a promise it is to be applied only to duty that was chargeable under Section 18(2) and not to a duty which can be competently levied under a different nomenclature. On this question, the decision of this Court in the case of Collector of Customs Vs. Ravi Spinning Ltd. (1999 SCMR 412) at page 443 can be referred with considerable advance. In that case it was held as follows: “………….It is not disputed that customs duties are not levied only under section 18(1) of the Act but they are also levied though under different nomenclature, under section 18(2) of the Act and the Finance Act. The issuance of an exemption notification under section 19 of the Act, therefore, presupposes that the goods exempted are already subject to an existing charge of the customs duty. The exemption notification, therefore, ordinarily will not have within its purview a duty or tax not in force or in existence, on the date of issuance of the exemption notification. The exemption notification, while exempting the goods from the existing charge of customs duty, Civil Appeal No. 1600/2006 6 may, however, also provide that any future levy of customs duty will also be exempted on to goods exempted from the current and existing charge of customs duty. Therefore, the conclusion that the exemption notification not only applied to the existing charge of customs duty but also covered the future levy of the customs duties will depend on the language used in the notification.” 6. Then in the same judgment at page 458, this Court further held as follows:- “The statutory duty prescribed under the First Schedule to the Act has nexus only with the duty levied under section 18(1) of the Act. Therefore, on the language of these S.R.Os., it is not possible to hold that the exemption granted under these notifications also applied to the customs duty levied in addition to the statutory duty under section 18(2) of the Act or under other laws for the time being enforced. We have already pointed out earlier in this judgment that in contradiction to the customs duty levied under section 18 (1), of the Act, which is prescribed and predetermined, the regulatory duty is neither prescribed nor pre-determined but is levied at a rate which may vary according to the circumstances. Therefore, regulatory duty imposed by the Government under section 18(2) of the Act though a species of customs duty, is a duty in addition to the duty prescribed under the First Schedule to the Act to meet a particular situation, not covered by the statutory duty. The notification issued by the Government under section 19 of the Act granting exemption wholly or partially from payment of customs duty prescribed under the First Schedule to the Act, could not therefore, in our view, cover the customs duty subsequently levied by the Government by way of additional customs duty to meet or cover a situation arising subsequent to the issue of the exemption notification. If the Government intended to exempt any future levy of the customs duty as well while granting exemption from the existing Civil Appeal No. 1600/2006 7 prescribed customs duty, it could provide so in the exemption notification as has been done on a number of occasions. As the exemption notifications referred to above, did not exempt the goods which were exempted from statutory customs duty, also from the payment of regulatory duty, the exemption did not apply to the regulatory duty imposed by the Government subsequently although the regulatory duty may be a species of the customs duty.” 7. As to the distinction which the learned counsel for the appellant tried to make between “duty free imports’ and “zero-rated import” to justify that regulatory duty cannot be imposed where goods are free from customs duty, suffice is to state that in the impugned judgment it has been sufficiently explained that the term “zero-rated” is not used in Customs Act as such a term is used in the Sales Tax only and that too for the purpose of adjustment of input-tax with the output-tax. Hence, nothing turns on making such a distinction. We may also mention here that a question may arise where the import is totally exempted from customs duty how can then the regulatory duty, which is to be charged ad valorem be computed. Such a question came up before this Court in the case of Yousuf Re-Rolling Mills Vs. Collector of Customs (PLD 1989 SC 232). It was held that such a levy is to be computed on the basis of the value of the goods to be determined under the provisions of Section 25 of the Customs Act. At page 241 of the Yousuf Re-Rolling Mills supra it was held as under:- “If the rate of duty of the articles is specified in the 'First Schedule then no, discretion is left to the Federal Government to exceed the limit prescribed namely fifty per cent. But if no rate is prescribed in the First Schedule such as in the case of those articles which are imported free of customs duty, it is Civil Appeal No. 1600/2006 8 only then that the maximum of the second part can be levied on the value of the articles determined under section 25. The restriction to levy regulatory duty is accordingly explicit in case the articles imported fall under the first part in regard to which the rate of duty is prescribed in the First Schedule and while imposing the levy of regulatory duty the Federal Government is under this restraint.” 8. The judgment above cited not only established as to how a regulatory duty is to be computed where the import of any item is free from customs duty but it also supports our finding that the Federal Government can impose regulatory duty even on goods which are free from customs duty. 9. From the above discussion, it is evident that chargeability of regulatory duty has no nexus with the chargeability or grant of exemption with regard to the statutory customs duty falling under Section 18(1). We, therefore, find this appeal as having no merit and the same is accordingly dismissed. JUDGE JUDGE JUDGE Islamabad, the 4th of January, 2016 Approved For Reporting Khurram

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE FAISAL ARAB MR. JUSTICE TARIQ PERVEZ CIVIL APPEAL NO.1611 AND 1612 OF 2014 (Against the judgment dated 19.11.2014 of the Election Tribunal, Karachi passed in E.P. No.9/2014) Asghar Ali Sheikh …in C.A.1611/2014 Asadullah Junejo …in C.A.1612/2014 …Appellant(s) VERSUS Liaqat Ali Jatoi etc. …Respondent(s) For the appellant(s): (in C.A.1611/2014) Mr. Wasim Sajjad, Sr. ASC Mr. Raja M. Shafqat Khan Abbasi, ASC For the appellant(s): (in C.A.1612/2014) Mr. Kamran Murtaza, ASC For respondent No.1: Mr. Afzaal Ahmed Siddiqui, ASC Date of hearing: 06.01.2016 … ORDER MIAN SAQIB NISAR, J.- These appeals under Section 67(3) of the Representation of People Act, 1976 (the Act) have been filed against the judgment of the learned Election Tribunal, Karachi dated 19.11.2014 whereby the election of respondent No.2 (returned candidate) was set aside and respondent No.1/election petitioner (runner up) was declared to be duly elected. 2. The brief facts of the case (for the sake of convenience, we will be using C.A.1611/2014 as our reference point) are:- the appellant, respondent No.1 (respondent) and pro-forma respondents contested the general elections held on 11.5.2013 for the Provincial Assembly Constituency PS-76 Dadu- III. Respondent No.2, who obtained 56,938 votes was declared to be the returned candidate by the Election Commission of Pakistan (ECP) vide C.As.1611 and 1612 of 2014 -:2:- notification dated 22.05.2013, while the respondent, who secured 22,803 votes, was the runner up, and the appellant, also one of the contesting candidates, bagged 95 votes. The difference between the number of votes obtained by respondent No.2 (returned candidate) and the respondent (runner up) is 34,135 votes. The total number of valid votes cast at the election was 81,738, whereas the number of rejected votes was 2,298. The respondent filed an election petition challenging the elections on the ground that there was widespread rigging and bogus voting at the election, that the election of respondent No.2 had been procured by corrupt and illegal practices and that there was rampant non-compliance of the provisions of the Act and the rules made thereunder, on account of which the election of respondent No.2 be declared as void and that the respondent be declared to have been duly elected, or alternatively that the election be declared void as a whole. After obtaining a reply from respondent No.2 and in view of the divergent pleadings of the parties to the election petition the learned Election Tribunal framed the following issues:- “1. Whether petition is not maintainable? O.P.R. 2. Whether this election petition is time barred? O.P.R. 3. Whether Police personal and unqualified/incompetent polling staff was deployed at the pilling stations at the command of respondent no. 1 and they openly supported the respondent no. 1? O.P.P. 4. Whether the notorious criminals before the election and on the election day worked for the respondent No. 1 rigged the election and polled bogus votes at 42 polling stations mentioned in para 7(i) of the petition? O.P.P. 5. Whether Qurban Ali Joyo and Mujeeb Laghari closed polling station number 272 at about 2:30 P.M. took the entire Polling Staff to Zarai Taraqiati C.As.1611 and 1612 of 2014 -:3:- Bank, Mehar, there stamped the ballot papers on arrows and supplied the stamped ballot papers to various polling stations and 300/400 ballot papers were recovered from Zarai Taraqiati Bank, Mehar? O.P.P. 6. Whether respondent no. 1 and his associates attacked the Polling Stations number 35,104 and 120, injured the agents, workers of petitioners, took over the control and cast the bogus votes? O.P.P. 7. Whether Presiding Officer illegally rejected/excluded 2294 votes ?O.P.P. 8. Whether Presiding Officer of Polling Station number 3 was robbed and all the election material had been taken away by the associate of respondent no. 1? O.P.P. 9. What should the order be?” Upon giving its findings on various issues, the learned Election Tribunal came to the conclusion that the election of respondent No.2 was procured by corrupt practices and thus declared her election to be void under Section 68 of the Act, and declared the respondent to be duly elected under Section 69 of the Act. We find it expedient to reproduce the conclusion reached by the learned Election Tribunal which reads as follows:- “…On account of the findings on the issues Nos. 3 and 4 in the affirmative which relate to commission of corrupt practices it can be held without any doubt that the election of the returned candidate has been procured by the corrupt practice as defined in Section 78(2) r/w Sec. 81(1)(a) and (b) of the Act… Hence to election of the returned candidate is declared as void as provided in Section 68(1)(c) of the Act. The Petitioner being the runner up and has so claimed to be declared as elected and this tribunal is satisfied that he is entitled to be declared as such under Section 69 of the Act and therefore declared accordingly.” C.As.1611 and 1612 of 2014 -:4:- 3. It has been argued by the learned counsel for the appellant that the appellant has no grievance with the setting aside of the elections by the learned Election Tribunal, rather his sole attack against the impugned judgment before us today is that the respondent could not have been automatically declared to be duly elected under Section 69 of the Act, as this has resulted in the disenfranchisement of 56,938 voters. He further stated that the principle of throw away votes would only come into operation if the disqualification of a returned candidate was notorious at the time of polling, which is not the situation in the instant case. In this respect he has relied upon the judgment reported as Sh. Amjad Aziz vs. Haroon Ahtar Khan and 10 others (2004 SCMR 1484). To buttress his arguments, learned counsel for the appellant also submitted that even if the 56,938 votes cast in favour of respondent No.2 are held to be bogus on the basis that they have been obtained through corrupt and illegal practices (which has been so held in the impugned judgment), since such number of votes (56,938) constitutes approximately 70% of the total votes cast, thus the elections stand to have been materially affected, warranting declaration of the election to be void as a whole under Section 70 of the Act. Therefore in any case, the respondent cannot be automatically declared to be duly elected, rather fresh elections must be held. 4. On the other hand, learned counsel for the respondent, while apprising us of the fact that respondent No.2 has withdrawn her candidacy, has submitted that once the returned candidate has withdrawn then the respondent being the runner up is the only one left in the field to be declared as duly elected. Learned counsel for the respondent, in order to controvert the submissions of the learned counsel for the appellant regarding the C.As.1611 and 1612 of 2014 -:5:- principles of throw away votes and notorious disqualification, stated that the respondent had challenged the election of respondent No.2 on the ground of corrupt and illegal practices and not that she was liable to be disqualified, and having successfully proved that her 56,938 votes were secured by corrupt practices, such number of votes were essentially not in fact cast in her favour and thus the respondent can most definitely be declared to be duly elected. He further argued that the attack put forth by the appellant (who only secured 95 votes) is not sustainable, as it is more in the nature of quo warranto, as he (appellant) is only seeking a declaration of the election to be void, and not to have himself declared as duly elected. Learned counsel for the respondent submitted that the fact that the respondent’s election petition was given on oath and that the evidence produced by the respondent was not cross-examined by any party to the election petition was sufficient to prove to the satisfaction of the learned Election Tribunal that the respondent was entitled to be declared elected. 5. Heard. Since the learned counsel for the appellant has stated at the very outset that the appellant has no objection to the invalidation of the election of respondent No.2, therefore we do not find it necessary to discuss the same, and shall confine ourselves to the relevant key issue of declaration of the respondent (runner up) as duly elected under Section 69 of the Act. In order to appreciate the above, the section ibid is reproduced below:- 69. Ground for declaring a person other than a returned candidate elected.—The Tribunal shall declare the election of the returned candidate to be and the petitioner or any other contesting candidate to have been duly elected, if it is so claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the C.As.1611 and 1612 of 2014 -:6:- petitioner or such other contesting candidate was entitled to be declared elected. As has been held by this Court in the recent judgment passed in Syed Hafeezuddin vs. Abdul Razzaq etc. (C.A. No.1086/2014) the requirements of Section 69 of the Act are that a claim to be declared as duly elected must be made either by the election petitioner or any of the respondents to the election petition, and that the person seeking such declaration has been able to substantiate and make out his case vis-à-vis his entitlement to the satisfaction of the Election Tribunal. It may be pertinent to mention that satisfaction should not be a subjective assessment of the Tribunal rather must be objective in manner based upon the evidence brought on the record by the respondent (who claims to be declared as duly elected) and justifiable reasons must be duly recorded and assigned in this behalf. Thus such declaration cannot be made ipso facto or as a matter of right, rather, such person seeking a declaration will have to prove on the strength of his own evidence his entitlement to be declared as duly elected. 6. In order to determine whether the respondent had indeed proved his entitlement to be duly elected to the satisfaction of the learned Election Tribunal, an appraisal of the evidence produced by him would be necessary. Learned counsel for the respondent drew our attention to the evidence led by the respondent (election petitioner) during the election proceedings and stated that it (evidence) was sufficient to prove to the satisfaction of the learned Election Tribunal that the respondent should be declared as duly elected. The respondent himself appeared as a witness (PW.1) and he produced and got exhibited his election petition (Exb.C) which was to form his examination in chief. The three other documents tendered in evidence were a certified copy of a complaint C.As.1611 and 1612 of 2014 -:7:- regarding the conduct of elections filed by the respondent’s counsel to the ECP, a certified copy of an FIR (bearing No.81/2013 dated 12.05.2013) pertaining to allegations vis-à-vis the elections (Exb.C/2), and a certificate issued by TCS courier service regarding verification of a receipt (Exb.C/3). The second witness, Mr. Riazuddin (PW.2) only produced three documents which were a letter (PW.2/1) from the Additional Session Judge/Returning Officer stating that Mr. Riazuddin has been deputed to produce documents pertaining to the election petition, and two complaints from the respondent to District Returning Officer, Dadu (PW.2/2) and Returning Officer, Mehar (PW.2/3) respectively regarding certain anomalies in the conduct of election. Suffice it to say that merely exhibiting an election petition (even if verified on oath) is not a substitute for an examination on oath, in the form of statement by a witness, therefore in this respect the respondent’s evidence is completely inadequate and cannot be taken into consideration for the purposes of proof of the respondent’s entitlement to be declared as duly elected. Further, the FIR and various complaints/letters per se cannot be deemed to be adequate, satisfactory and positive proof of the allegations leveled in the election petition, which (allegations) must be proved through independent evidence. With regard to the argument of the learned counsel for the respondent that the respondent’s testimony was not subject to cross-examination (Note: it appears that the respondent was subject to cross-examination by counsel for respondent No.8) and that his evidence was not rebutted, suffice it to say that even if the evidence of the respondent went un-rebutted, it does not mean that an automatic conclusion should be drawn that such evidence was sufficient to ‘satisfy’ the learned Election Tribunal that the respondent should be declared to be duly elected in terms of Section 69 of the Act. As mentioned earlier in this opinion, positive evidence to this effect must be C.As.1611 and 1612 of 2014 -:8:- provided, therefore, in light of the above we are of the candid view that the respondent has not been able to prove on the strength of his own evidence that he was entitled to be declared a duly elected in place of respondent No.2 (returned candidate). It may also be pertinent to mention at this juncture that in the instant case while reading the part of the impugned judgment under attack, we find the above criteria regarding satisfaction of the learned Tribunal based on an objective assessment set down (by us) to be conspicuously missing and the Tribunal in a cursory and routine manner having declared the election of respondent No.2 (returned candidate) as void has issued a declaration of the respondent to be duly elected in her place. 7. Now coming to the argument propounded by the learned counsel for the appellant pertaining to the non-applicability of the principles of throw away votes and notoriety of disqualification to this case, and thus the respondent should not have been declared as automatically duly elected under Section 69 of the Act. In order to controvert this argument, learned counsel for the respondent stated that the respondent did not challenge the election of respondent No.2 on the ground of her being disqualified, rather that illegal and corrupt practices were committed, which fact has even been admitted by the appellant himself as he has not challenged the impugned judgment to the extent of invalidation of the election of respondent No.2. As has been laid down in various dicta of this Court [which have been considered in detail in Syed Hafeezuddin (supra)], a runner up to an election is not to be automatically declared as duly elected simply by virtue of having secured the next highest number of votes after discarding or ‘throwing away’ the votes secured by a returned candidate whose election has been declared to be void under Section 68 of the Act. The raison d’être against automatic ‘throwing away’ of the votes of a person whose election has been C.As.1611 and 1612 of 2014 -:9:- declared to be void, is that such would result in disenfranchisement of the voters who voted for the returned candidate (in this case 56,938 voters) unless it can be proved that the said voters casted their vote despite the fact that they were aware of such person’s negative conduct in the elections. A perusal of the record indicates that there is no proof whatsoever brought by the respondent (election petitioner) that the 56,938 voters were aware of any such information that would hurl doubt upon the validity of the votes cast, thereby potentially warranting throwing away of their votes. It may also be pertinent to mention here that the fact that the respondent only procured 22,803 votes (as opposed to 56,938 votes secured by respondent No.2) out of a total of 81,738 votes cast in the constituency (approximately 28% of the total votes) speaks for itself that he may not necessarily be a true representation of the will of the people. The real concept of elections is that the true representative of the people should come forth, therefore in order to uphold the mandate of representative democracy enshrined in the Constitution of the Islamic Republic of Pakistan, 1973, we are of the view that the elections should be declared to be void as a whole and fresh elections should take place to ensure that the peoples’ desired representative is elected. 8. Another aspect of the matter is that as per the impugned judgment since the 56,938 votes cast in favour of respondent No.2 have been held to be obtained through corrupt practices and thus there could be said to have been a breach of the provisions of Section 70(a) and/or (b) of the Act, if these 56,938 votes (which constitute approximately 70% of the total votes cast) are excluded from the count, which are greater than the differential between the votes secured by respondent No.2 (returned candidate) and the respondent (runner up), i.e. 34,135 votes, thus it can be said that the election has been materially affected and should be C.As.1611 and 1612 of 2014 -:10:- declared to be void as a whole. Resultantly, in this scenario as well fresh elections would have to take place. 9. In respect of the argument of the learned counsel for the respondent that respondent No.2 has withdrawn from her candidacy, we opine that subsequent withdrawal does not change the fact that during the elections the respondent could not be said to be the true representative of the people, having secured only approximately 28% of the votes from his constituency as mentioned above. 10. In view of the foregoing, we find that the respondent was unable to prove through positive evidence his entitlement to the satisfaction of the learned Election Tribunal to be duly elected under Section 69 of the Act, therefore, the declaration to this effect by the learned Tribunal was unwarranted and erroneous. Therefore, these appeals are allowed to the extent that the respondent was declared to be duly elected in place of respondent No.2, and the ECP is directed to hold fresh elections in the constituency in accordance with law. Disposed of accordingly. JUDGE JUDGE JUDGE Islamabad, the 5th January, 2016 Not Approved For Reporting Waqas Naseer/*

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{'id': 'C.A.1611_2014.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Gulzar Ahmed, HCJ Mr. Justice Ijaz ul Ahsan Mr. Justice Sajjad Ali Shah Civil Appeal No.1618/2019. (Against the order dated 18.7.2017 passed by the Islamabad High Court in WP No.3793/2016) NAB through its Chairman … Appellant(s) Versus Muhammad Shafique … Respondent (s) For the Appellant (s) : Mr. Imran ul Haq Khan, DPG NAB For the Respondent(s) : Raja Muhammad Anwar Khan Abbasi, ASC Mr. Ahmed Nawaz Ch. AOR Date of Hearing : 06.01.2020 Judgment Sajjad Ali Shah, J. The respondent in the year 1990 was appointed as Upper Division Clerk in the Ministry of Food, Agriculture and Life Stock, Islamabad and thereafter was placed in surplus pool. The respondent ultimately on 18.12.2002 was absorbed in the appellant-NAB as UDC. He absented himself from duty for a continuous period of 66 days from 23.11.2009 giving rise to disciplinary proceedings which resulted in his compulsory retirement. The respondent against such major penalty invoked constitutional jurisdiction of the Islamabad High Court by pleading inter alia that since the office order dated 12.3.2010 through which major penalty of compulsory retirement from service was imposed also directs the treatment of his un-authorized absence from duty of 66 days from 23.11.2009 to 27.1.2010 as extraordinary leave (EOL) without pay, therefore, the major penalty of compulsory retirement could not be sustained. The High Court, through the impugned judgment, while accepting such plea allowed the petition by setting aside the major penalty CA 1618 of 2019 2 of compulsory and directed the reinstatement of the respondent with all back benefits. 2. Leave was granted by this Court vide order dated 30.9.2019 to examine as to whether in the circumstances, penalty of compulsory retirement could not be imposed upon the respondent. 3. The learned Deputy Prosecutor General NAB contends that during 7 years of service with the appellant, the respondent remained absent for a total period of 1627 days and in this respect various warning letters were issued to him but he did not improve his behaviour rather once again on 23.11.2009 absented himself which absence continued for 66 days. Show cause notice in the meanwhile was accordingly issued on 18.12.2009. It was responded by the respondent on 29.12.2009 requesting the adjustment of his casual leave against his absence. However, the response submitted by the respondent did not find favour with the competent authority, consequently, vide order dated 12.3.2010 the competent authority while imposing major penalty directed the compulsory retirement of the respondent. So far as the conversion of the un-authorized absence from duty as extraordinary leave, it was submitted that this was only for the purpose of settlement of respondent’s dues. In the circumstances, it was submitted that the impugned judgment lacks legal sanctity and could not be sustained. 4. On the other hand, learned counsel for the respondent contended that rule 9(3) of the Revised Leave Rules, 1980 empowers the competent authority to grant extraordinary leave retrospectively in lieu of absence from leave and since the competent authority has exercised such discretion by treating the respondent’s un-authorized absence of 66 days as extraordinary leave, therefore, there was no occasion to impose major penalty of compulsory retirement. Counsel, in support of his contention, placed reliance on the judgments of this Court in the case titled Lahore Development Authority vs. Muhammad Nadeem Kachloo (2006 SCMR 434), CA 1618 of 2019 3 Director General Intelligence Bureau vs. Muhammad Javed (2012 SCMR 165) and Muhammad Sharif Abbasi vs. Member, Water, WAPDA Lahore (2013 SCMR 903). 5. We have heard the contentions of learned counsel for both the parties and have perused the record as well as the case law cited at bar. 6. It appears from the record that the respondent not only absented himself from duty but during his absence, he received a show cause notice, responded it and still continued with his absence. The show cause notice seeking explanation of the respondent for his un-authorized absence was issued on 18.12.2009 containing the following charge:- “You are absent from duty since 23rd November, 2009 without any intimation/prior approval of your office incharge as reported by Ops Division. You were served an explanation on 1st December, 2009 with the direction to explain your position within three days followed by 2 x reminders dated 10th and 14th December, 2009, but you did not reply so far. You were also directed to report for duty immediately, but you are still absent from duty”. Therefore, you Mr. Muhammad Shafique, UDC, NAB (HQ), Islamabad are called upon to show cause within period of 10 (Ten days) from the date of receipt of this notice as to why one of the penalties as defined in para 11.03(1) of NAB’s TCS should not be imposed upon you on account of misconduct”. 7. The respondent on 29.12.2009, almost within the prescribed period, responded to the show cause notice, the relevant portion of the said response, which is very relevant to resolve the controversy, is reproduced as follows:- “In the mean time I had been suffering from severe back-ach and getting some formal treatment but in vain and the pain was increasing day by day. It is worth of mention here that I had been attending the office during those days. So I decided to be treated from some specialist and I did so. In the result of detailed check up by the doctor I was advised complete bed-rest (Doctor’s advice will be submitted in couple of days) and because of that I submitted casual leave applications one after another, w.e.f. 1st December 2009 onward. It is humbly requested to treat my absent days as leave. I shall be highly obliged”. 8. The response submitted by the respondent did not find favour with the competent authority which vide office order dated 12.3.2010 CA 1618 of 2019 4 directed the respondent’s compulsory retirement by imposing one of the major penalties. Since this office order also directed the treatment of respondent’s un-authorized absence as extraordinary leave without pay and the entire controversy, as projected before us, revolves around the treatment of respondent’s such un-authorized absence from duty as extraordinary leave, therefore, it would be proper to reproduce the office order dated 12.3.2010 imposing major penalty of compulsory retirement which reads as under:- “In pursuance of Show Cause Notice issued vide this Bureau’s letter of even number dated 18th December, 2009 the competent authority i.e. Director General HR & Fin has imposed a major penalty i.e. ‘compulsory retirement from service’ upon Mr. Muhammad Shafique, UDC, NAB, Islamabad under section 11.03(1)(b)(ii) of NAB’s TCS with immediate effect. The un–authorized absence from duty for a period of 66 days from 23rd November, 2009 to 27th January, 2010 is hereby treated as EOL (without pay).” 9. Perusal of this office order would reflect that the competent authority in the first paragraph of office order has expressed its mind explicitly on the unauthorized absence of the respondent by imposing the major penalty of compulsory retirement from service with immediate effect. So far as the second portion of the office order is concerned, since the penalty imposed by the competent authority was of compulsory retirement which follows the payment of salaries and other dues till the date of imposing such penalty, therefore, in our opinion, it was necessary to give finding as to how such absence is to be treated, therefore, to say that since the un-authorized absence of the respondent was treated as extraordinary leave in term of rule 9(3) of the Revised Leave Rules, 1980 does not appeal to our mind. If this would have been the case then the first paragraph of the office order would be redundant, on the contrary it categorically provides for the consequences of the un-authorized absence. 10. No doubt sub-Rule 3 of Rule 9 of “The Revised Leave Rules, 1980” empowers the authorized officer to treat the un-authorized absence CA 1618 of 2019 5 of an employee as extraordinary leave without pay but such treatment is not to be automatically allowed in every case. In our opinion, such powers are to be exercised in very genuine cases where the authorized officer finds that imposing of major penalty on account of unauthorized absence of an employee would be too harsh or is not warranted under the circumstances. However, where the authorized officer after due application of mind upon examining/adjudging the misconduct has imposed one of the major penalties and thereafter keeping in mind that the gap between the un- authorized absence of the employee and the imposition of major penalty is to be provided with some kind of treatment provides for accordingly, then such treatment may it not be necessary would undo the major penalty. 11. So far as the case law relied upon by the learned counsel for the respondent is concerned, in the cases of Lahore Development Authority vs. Muhammad Nadeem Kachloo and Director General Intelligence Bureau vs. Muhammad Javed (supra), the competent authority after awarding major penalty of dismissal from service had directed the petitioner’s un-authorized absence as leave without pay. The cases can be differentiated as after imposing the penalty of dismissal from service, an employee may not be found entitled to any dues, therefore, there could hardly be any reason to provide for the treatment of their un-authorized absence as leave without pay. Beside in our view this was not a good interpretation of the office order imposing major penalty for the simple reason that the subsequent portion of the office order whereby the treatment of the un-authorized leave was provided as extraordinary leave without pay, at the most could be superfluous and redundant but could not be treated to nullify the major penalty which of course is imposed after adjudging the conduct of an employee. In case where the competent authority wanted to condone the absence of an employee by directing its treatment as one kind of leave, then the competent authority would have shown its intention by providing reasons for condoning such absence or at least would not have in the same CA 1618 of 2019 6 breath imposed major penalty of dismissal or compulsory retirement. The benefit of such naïve drafting cannot be given to an employee who otherwise by his conduct deserved one of the major penalties. Additionally, it is not disputed that the conversion of unauthorized absence, as EOL without pay is not a penalty/punishment so that one can say that such treat cannot co- exist with the major penalty/minor penalties. It is very obvious that if a man has absented himself from work without the permission of his employer, he of course is not entitled as of a right for payment of salary for such period. 12. So far as the case of Muhammad Sharif Abbasi vs. Member, Water, WAPDA Lahore (supra) is concerned, in that case on account of un- authorized absence, after awarding major penalty of compulsory retirement the un-authorized absence was treated as EOL without pay. However, in the said case the Court’s opinion was mainly swayed on account of the fact that the petitioner in that case was an employee of the WAPDA and admittedly was hospitalized in WAPDA’s own hospital, therefore, the major penalty of compulsory retirement was not found sustainable. 13. These are the reasons of our short order of even date which was in the following terms:- “We have heard the learned counsel for the parties and have also gone through the record of the case. For reasons to be recorded, this appeal is allowed and the impugned judgment passed by the High Court dated 18.7.2017 is set aside resulting in dismissing of Writ Petition No. 3793/2016, filed by the respondent against the petitioner”. Chief Justice Judge Islamabad, the 6th January, 2020 A. Rehman Judge Not Approved for Reporting.

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{'id': 'C.A.1618_2019.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE ANWAR ZAHEER JAMALI, HCJ MR. JUSTICE SH. AZMAT SAEED MR. JUSTICE FAISAL ARAB CIVIL APPEAL NO. 1628 OF 2014 (On appeal against the judgment dated 19.11.2014 passed by Election Tribunal, Bahawalpur & D.G. Khan Divisions in Election Petition No. 13/2013) Ms. Shamuna Badshah Qaisarani … Appellant VERSUS Khuwaja Muhammad Dawood and others …Respondents For the Appellant: Mr. Khadim Nadeem Malik, ASC Mr. Arshad Ali Ch, AOR For the Respondent (1): Sardar Muhammad Aslam, ASC Mr. M.S. Khattak, AOR Date of Hearing: 09.05.2016 JUDGMENT FAISAL ARAB, J.- In the bye-election that was held for the Punjab Assembly constituency PP-240 D.G. Khan-I, the appellant was declared returned candidate. Her election was challenged by losing candidate i.e. respondent No. 1 through an election petition filed in the Election Tribunal, Bahwalpur and D.G. Khan Divisions under Section 52 of the Representation of the People Act, 1976. Corrupt and illegal practices were alleged. During pendency of the election petition, the respondent No. 1 moved an application under Section 76A of the Representation of the People Act, 1976. This provision of law entrusts the Election Tribunal with additional power to declare an election of the CIVIL APPEAL NO. 1628/2014 2 returned candidate void if any material from any source or information is laid before it that the returned candidate had inter alia submitted a false or incorrect statement of assets and liabilities of his own or his spouse or his dependents. Before the Tribunal though the allegations of corrupt practices could not be established however while hearing the application filed under Section 76A of the Representation of the People Act, 1976 it transpired that the respondent No. 1 in her nomination form failed to disclose properties such as (i) land measuring 448 kanals 4 marlas situated in Moza Bairoot Mandhawani, Tribal District Khazi Khan (owned by husband of the appellant) and (ii) land measuring 263 kanals 14 marlas situated in Moza Bait Wasava Khan Wala Tehsil and District Layyah and (iii) land measuring 13 kanals 16 marlas situated in Bait Wasava Kalroo Tehsil and District Layyah, and (iv) land measuring 77 acres situated in Mouza Khanwala, Wasavewala, Layyah (owned by the appellant) were not disclosed in the nomination papers. Consequently, the election of the appellant was declared void and fresh elections were ordered to be held in the constituency. Against such decision, the present appeal has been filed. 2. Learned counsel for the appellant contended that Section 76A of Representation of the People Act, 1976 is contrary to the provisions of Article 225 of the Constitution. He submitted that according to Article 225 of the Constitution, no election to a House or Provincial Assembly can be called in question except by election petition and in the election petition the respondent No. 1 CIVIL APPEAL NO. 1628/2014 3 failed in establishing plea of corrupt and illegal election practices. He submitted that in the circumstances the Election Tribunal ought not to have entertained the application filed under Section 76A of Representation of the People Act, 1976. In support of his contention, he relied upon the case of Muhammad Ahmad Chatta Vs. Iftikhar Ahmed Cheema (2016 SCMR 763). 3. In rebuttal, learned counsel for the respondent No. 1 contended that in the application filed by the respondent No. 1 under Section 76A of the Representation of the People Act, 1976, he has clearly mentioned certain properties owned by the appellant and her husband, which were admittedly concealed by the appellant at the time of filing her nomination papers. He submitted that even in the nomination papers that were filed in the General Elections 2013, the appellant had disclosed one of her properties measuring 77 acres in Mouza Khanwala, Wasavewala, Layyah but at the time of contesting bye-election the same and some other properties were not disclosed. 4. The fact that certain properties were not disclosed in the nomination papers was not denied. The only defence that was taken was that as these properties have already been transferred in the names of appellant’s brothers, therefore, the same were not disclosed in nomination form. It is an admitted position that only in an affidavit it has been disclosed that the properties have been transferred to her brothers. At the time of filing of the nomination papers these properties were admittedly in the name of the CIVIL APPEAL NO. 1628/2014 4 appellant and her spouse in the revenue record. With regard to the legal objection that Section 76A of Representation of the People Act, 1976 is contrary to the provisions of Article 225 of the Constitution, the same is misconceived. Article 225 of the Constitution clearly provides that no election to a House or Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of Parliament. The Representation of the People Act, 1976 is an Act of the Parliament, which has provided the manner in which election is to be challenged before the Election Tribunal. The scope of challenge, which covers the acts of corrupt and illegal practices committed by or on behalf of the returned candidates in the conduct of the elections, is mentioned in Section 68 of Representation of the People Act, 1976 whereas Section 76A grants suo moto powers to the Election Tribunal to declare election of a returned candidate void on certain grounds which include non-disclosure or incorrect disclosure of assets of the candidate or his spouse or his dependents. Under Section 76A such disclosure can come from any source before the Election Tribunal, which in the present case came from respondent No. 1. The procedure adopted by the respondent No.1 and entertained by the Election Tribunal in an election petition being very much within the confines of Article 225 of the Constitution, it cannot be said to be unconstitutional. Article 225 clearly provides that the forum to challenge the election to a House or Provincial Assembly is the Election Tribunal and the manner in which such challenge is to be made is to be determined by the Parliament and for the CIVIL APPEAL NO. 1628/2014 5 purposes of the present proceedings, the manner is provided in Section 76A of the Representation of the People Act, 1976. 5. The above are the detailed reasons of our short order of even date vide which we had dismissed this appeal. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 9th of May, 2016 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 MAQBOOL BAQAR MR. JUSTICE FAISAL ARAB CIVIL APPEAL NO. 1628 OF 2017 (On appeal against the judgment dated 13.04.2017 passed by the Lahore High Court, Lahore in Election Appeal no. 16/2016) Zulfiqar Ali Ranjha and Mirza Habibullah … Appellants VERSUS Zia Ullah Ranjha and others … Respondents For the Appellants: Mr. Hamid Khan, Sr. ASC For the Respondents: Mr. Muhammad Munir Paracha, ASC Mr. Dil Muhammad Khan Alizai, ASC Date of Hearing: 08.03.2018 JUDGMENT FAISAL ARAB, J.- Under the local government laws, election to the seats of chairman and vice chairman of a Union Council is contested in pairs. Four sets of candidates contested for the seats of chairman and vice chairman of Union Council No. 23, Minawal Ranjha, District Mandi Bahauddin, Punjab for which polling was held on 19.11.2015. The appellants ranked first by securing 2545 votes whereas respondent Nos. 1 & 2 stood runner- ups, bagging 2523 votes. Leading with a thin margin of 22 votes, the appellants were declared returned candidates. The respondent Nos. 1 & 2 disputed the vote-count of Polling Station No.200 and sought recount where a total of 1178 votes had been cast. Out of 1178 votes 1131 were declared valid of which the appellants bagged 712 votes, respondent Nos. 1 & 2 bagged 286 votes, respondent Nos. 3 & CIVIL APPEAL NO. 1628 OF 2017 2 4 bagged 130 votes and respondent Nos. 5 & 6 bagged 3 votes. 47 votes were rejected. The Returning Officer allowed the application of respondent Nos. 1 & 2 for recount of votes polled in polling station No.200. In the process of recounting, 17 votes from the count of the appellants and 4 votes from the count of respondent Nos. 1 & 2 were excluded whereas 8 votes were added to the count of respondent Nos. 3 & 4. After such minor adjustments the tally of valid votes in the second count came down to 1118 votes from 1131 votes and rejected votes increased to 60 votes from 47 votes. However these minor adjustments are not in issue in the present proceedings. The issue solely relates to 207 ballot papers that were excluded from the tally of 1118 valid votes on account of absence of signatures of the presiding officer. Of these 207 ballot papers 131 were polled in favour of the appellants, 53 in favour of respondent Nos. 1 & 2 and 23 in favour of respondent Nos. 3 & 4. 2. As in the initial counting of votes, the appellants were declared successful with a thin margin of 22 votes, upon exclusion of 207 ballot papers in the recount, the final tally of the entire constituency tilted in favour of respondent Nos. 1 & 2 which reflected that they bagged 2447 votes as against 2391 votes bagged by the appellants. Hence, the result was reversed in favour of respondent Nos. 1 & 2 which the Election Commission notified on 21.12.2015. The appellants being aggrieved with the reversal of the result filed Election Petition before the Election Tribunal, Gujranwala, however, the same was dismissed on 03.10.2016 on the basis of sub-rule 4 (c) (i) of Rule 35 of the Punjab Local Governments (Conduct of Elections) Rules, 2013 which provides CIVIL APPEAL NO. 1628 OF 2017 3 that in case the official mark and the signature of the presiding officer is missing on the back of the ballot papers, the same are to be excluded from the vote-count. Unsatisfied with the result of the Election Tribunal, the appellants filed Election Appeal in the Lahore High Court. The High Court came to the conclusion that Rule 35 (4) (c) (i) specifically provides that where ballot papers do not bear the official mark and the signature of the presiding officer, the same are to be excluded from the vote count. Thus, the order of the Tribunal was maintained. Aggrieved by such decision of the High Court, present appeal with leave of this Court has been filed. 3. Learned counsel for the appellants argued that exclusion of 207 ballot papers from the tally of valid votes on account of absence of the signatures of the presiding officer was not justified when the ballot papers were duly stamped with the official mark and thus substantial compliance of the Rule 35 (4) (c) (i) of Punjab Local Governments (Conduct of Elections) Rules, 2013 was made. In support of his contention, learned counsel relied upon the dicta laid down in the case of Muhammad Abdullah Vs. Abdul Wakil (PLD 1986 SC 487). 4. Learned counsel for the respondents in rebuttal argued that Rule 35 (4) (c) (i) of Punjab Local Governments (Conduct of Elections) Rules, 2013 envisages existence of both the requirements i.e. official mark as well as the signature of the Presiding Officer which are mandatory and omission in the fulfilment of any of the two requirements would result in exclusion of ballot papers from the vote-count. With regard to the judgment cited by the counsel for the CIVIL APPEAL NO. 1628 OF 2017 4 appellants, learned counsel for the respondent Nos. 1 & 2 contended that the said judgment was rendered by this Court on the basis of the legal position obtaining under the then election laws which envisaged that such ballot papers are to excluded from the vote-count that do not contain official mark or the signature of the presiding officer whereas under Rule 35 (4) (c) (i) of Punjab Local Governments (Conduct of Elections) Rules, 2013 every ballot paper has to contain an official mark as well as the signature of the presiding officer in order to be counted and for this reason the word ‘and’ has been used in sub-rule 4 (c) (i) between the two requirements and not ‘or’ as was the law when Muhammad Abdullah’s case supra was decided, therefore, it is distinguishable on that score. He maintained that the word ‘and’ as provided under the law applicable to the case in hand, may not be read as ‘or’. In support of this contention learned counsel placed reliance on a judgment of this Court rendered in the cases of Shah Muhammad Vs. Election Tribunal, Urban Local Council, Chishtian (PLD 1985 SC 287) and Zahid Iqbal Vs. Muhammad Adnan (2016 SCMR 430). To further strengthen his submission, learned counsel also placed reliance on the handbook issued by Election Commission of Pakistan to all Presiding and Assistant Presiding Officers deputed to conduct 2015 Local Government elections in Punjab. One of the directions contained in the handbook with graphic display provided that where a ballot paper does not bear the stamp of the official code mark and the signature of the Assistant Presiding Officer, the same is to be excluded from the vote-count. 5. The question which needs to be examined in this case is whether the omission on the part of Presiding Officer to sign ballot CIVIL APPEAL NO. 1628 OF 2017 5 papers would outright warrant their exclusion from the vote-count under sub-rule 4 (c) (i) of Rule 35 of Punjab Local Governments (Conduct of Elections) Rules, 2013. For the sake of convenience sub-rule 4 (c) (i) of Rule 35 is reproduced below:- (4) Subject to the directions of the Election Commission, the Presiding Officer shall: (a) ……………………………………………………………… (b) ……………………………………………………………… (c) count the votes cast in favour of each contesting candidate excluding from the count the ballot papers, which bear: (i) no official mark and signature of the presiding officer; 6. Sub-rule 4 of Rule 35 facilitates in ascertaining whether the tally of final vote-count reconciles with the tally of legitimately issued ballot papers to the voters of a polling station at the time of polling. In case fake ballot-papers smuggled from outside are secretively stuffed in the ballot boxes, this would become apparent when the final vote-count exceeds the count of legitimately issued ballot papers. In such eventuality the official marks as well as the signatures of the presiding officer on the back of each ballot paper would facilitate in sorting out fake ballot papers from the genuine ones which could then be excluded from the vote-court. This appears to be the intent behind framing of sub-rule 4 of Rule 35. From the election data of the present case it is evident that a total of 1178 ballot papers were issued to the voters of which 1131 were CIVIL APPEAL NO. 1628 OF 2017 6 declared valid and 47 were rejected in the first count. When recounting was ordered it was conducted in two stages. In the first stage the tally of valid votes in the disputed polling station was reduced from 1131 to 1118 as 13 valid votes were rejected raising the tally of rejected votes from 47 to 60. This was the first stage of recounting of disputed votes which is not in dispute in these proceedings. Dispute arose when in the second stage of recounting 207 ballot papers from the tally of valid votes were excluded from the vote-count on account of absence of signatures of the Assistant Presiding Officer who conducted the elections at Polling Station No.200. After such exclusion, the final tally of valid votes came further down to 911 votes from 1118 votes. It may be mentioned here that the polling agents of the contesting candidates also keep an account of the ballot-papers issued to the voters by the presiding or assistant presiding officers. It has never been the case of respondent Nos. 1 & 2 that the final tally of ballot papers on the first or second count exceeded the number of ballot-papers legitimately issued at the disputed polling station during the polling process nor is their case that before commencing the count, the ballot boxes were removed from the sight of the their polling agents in order to give rise to the suspicion that the genuine ballot-papers may have been replaced with fake ones. In these circumstances the overall tally of ballot papers (inclusive of valid, rejected and excluded votes) issued at the time of polling at Polling Station No. 200 was 1178 and at both the stages of counting was also the same i.e. 1178 votes, totally ruling out bogus voting from the equation. The mischief which sub-rule 4 of Rule 35 intends to suppress is to prevent stuffing of ballot boxes with bogus votes which is not the CIVIL APPEAL NO. 1628 OF 2017 7 case in the present proceedings. This could be more conveniently comprehended from the following table:- Voting result of Polling Station No. 200 Position after first vote count Adjustments made in the second vote count which was not disputed Tally of votes after undisputed adjustments in second count Deduction of 207 valid votes having no signature of Presiding Officer Finally tally of votes after recount Appellants 712 -17 695 -131 564 Resp Nos. 1 & 2 286 -4 282 -53 229 Resp Nos. 3 & 4 130 +8 138 -23 115 Resp Nos. 5 & 6 3 - 3 3 Total valid votes 1131 1118 911 Rejected votes 47 13 60 207 267 Total votes polled 1178 1178 1178 7. From the above data, it can be seen that in all 1178 ballot papers were issued at the disputed polling station to the voters at the time of polling and the tally of vote-count in the two stages of recounting also remained the same i.e. 1178 votes (911 valid and 267 rejected/excluded). This establishes that the disputed 207 ballot papers were not smuggled from outside and polled but were part of 1178 ballot papers that were issued to the genuine voters who came to cast their votes at Polling Station No.200 but were excluded in the second count only for the reason that these ballot-papers did not bear the signature of the Presiding Officer, which is one of the two requirements of sub-rule 4 of Rule 35. In our opinion a ballot paper warrants out-right exclusion from the count if the signature as well as the official mark, both, are missing. In case only one of the two requirements exists and yet the final tally of votes cast at a polling station exceeds the number of ballot CIVIL APPEAL NO. 1628 OF 2017 8 papers issued to the voters then too such ballot-papers should be excluded from the vote-count as excess of votes upon their count establishes that bogus voting has taken place. None of these two situations, as illustrated above, exists in the present case. Why then these 207 voters, who legitimately exercised their right of vote, stand disenfranchised merely because the presiding officer committed mistake of not signing on them. In Muhammad Abdullah’s case supra referred to by the learned counsel for the appellants, reliance was placed on an earlier judgment of this Court in the case of Jamal Shah v. The Member Election Commission (PLD 1966 SC 1) which is a unanimous decision of five member bench. In this case late A. R. Cornelius, C.J. had observed thus “Moreover, the Member’s argument is not without weight, viz that an error in this respect is totally outside the obligation of the elector, and the law could not intend that he should be penalized for it. It is the duty of the Presiding Officer, under section 32, before he hands a ballot-paper over to the voter, to apply the official mark to it, and at the same time, to place his initials on it. There is ground, therefore, for thinking that the existence of the official mark is by itself sufficient to show that the paper passed through this process at the hands of the Presiding Officer, and it was mere act of inadvertence on his part that he failed to initial it at the same time. These considerations are relevant for the decision of the question of construction, viz whether the conjunction ‘or’ as used in the expression ‘no official mark or initials’ appearing in section 36 (1) (b) (i) enjoining exclusion of the vote by the Presiding Officer and section 38 (2) (a) enjoining rejection by the Returning Officer was not to be understood in a conjunctive, rather than in a disjunctive sense.” CIVIL APPEAL NO. 1628 OF 2017 9 8. When only 1178 ballot papers were issued to the voters at the time of polling at the disputed polling station and the final count of all the votes in the second round was also 1178 votes (911 valid and 267 rejected/excluded) and the disputed 207 ballot papers are inclusive of these 1178 ballot papers then on what material it could be said that the election in the disputed Polling Station was so badly conducted that the sanctity of vote was violated. Election laws are meant to prevent illegal and corrupt practices in an election process. Any omission on the part of the election officials in the enforcement of a rule which has nothing to do with the contesting candidate or the voters and such omission does not lead to form an opinion that bogus voting may have taken place then one cannot assume that object of sub-rule 4 of Rule 35 would be defeated if 207 validly cast votes are treated as valid and counted. On the contrary the said object would stand fully achieved, notwithstanding the omission of one of the two requirements of sub-rule 4 of Rule 35. When one of the two requirements have been fulfilled establishing that the disputed 207 ballot papers were issued to genuine voters of the constituency then there appears to be no reason to exclude them from the vote-count merely because one of the two requirements of sub-rule 4 of Rule 35 was not fulfilled by seeking strict compliance of both the requirements simultaneously. The object of sub rule 4 of Rule 35 of Punjab Local Governments (Conduct of Elections) Rules, 2013 is to exclude bogus and not genuine vote from the vote count. In the light of specific facts and figures of this case discussed above, exclusion of 207 votes would amount to excluding genuinely cast 207 votes from the count, which CIVIL APPEAL NO. 1628 OF 2017 10 in the circumstances of the case would amount to disenfranchising 207 genuine voters. A five member bench of this Court in the case of Jamal Shah supra has held that omission on the part of the presiding officer to sign ballot papers is totally outside the obligation of the voters and for that they cannot be penalized by excluding their votes which were nevertheless duly stamped with the official mark. This dictum of Jamal Shah’s case was not touched upon by three member bench of this Court in the case of Shah Muhammad supra though it was cited. 9. In view of the above discussion, we allow this appeal on the basis of dictum laid down in Shah Jamal’s case and declare that 207 disputed ballot papers are to be treated as valid and shall be taken into vote-count. JUDGE JUDGE JUDGE Islamabad, the Announced on 04.05.2018 by Hon’ble Mr. Justice Faisal Arab Approved For Reporting Khurram

{'id': 'C.A.1628_2017.pdf', 'url': ''}

{'id': 'C.A.1628_2017.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN CIVIL APPEAL NOs. 1631 TO 2112 OF 2017, CIVIL APPEAL NOs. 216 OF 2016 AND CIVIL APEPAL NOs. 806 TO 811 OF 2016. (On appeal form the judgments dated 18.7.2017,11.1.2016,05.10.2015 of the Federal Service Tribunal, Islamabad passed in Appeal Nos565 to 573,757 to 793,894-918,918-A,919-943,998-1005,1005-A,1006- 1045,1108-1179,1224-1243,1265-1325,2327-2350,2352-2368,2368-A,2369,2370,2372-2443,2446- 2449,2453,2451,2452,2450,2454-2484,2487-2501,2508-2520®CS/2016,867-872(R)CS/13,224(R)CS/15 etc.) Federation of Pakistan through Secretary Capital Administration and Development Division, Islamabad etc. …. Appellant(s) (in all cases) VERSUS Nusrat Tahir etc. (in C.A.1631/2017) Miraj Gul etc. (in C.A.1632/17) Ejaz Ahmed and others (in C.A.1633/2017) Firdous Begum etc. (in C.A.1634/2017) Robina Qureshi etc. (in C.A.1635/17) Muhammad Arshad etc. (in C.A.1636/2017) Shahbaz Akhtar Khalid etc. (in C.A.1637/2017) Muhammad Touqeer Ikram etc. (in C.A.1638/2017) Aftagb Ahmed etc. (in C.A.1639/2017) Taimoor Imran Ali Khan etc. (in C.A.1640/2017) Muhammad Jabbar Khan etc. (in C.A.1641/17) Shahid Iqbal etc. (in C.A.1642/2017) Muhammad Anwar etc. (in C.A.1643/2017) Naheed Kausar etc. (in C.A.1644/17) Iqbal ur Rashid etc. (in C.A.1645/2017) Ghulam Mustafa etc. (in C.A.1646/2017) Mukhtar Ahmed etc. (in C.A.1647/17) Naeema Bushra Malik etc. (in C.A.1648/2017) Meena Asad etc. (in C.A.1649/2017) Muhammad Qayyum etc. (in C.A.1650/17) Rubina Mahmood Awan etc. (in C.A.1651/2017) Muhammad Khushal Khan etc. (in C.A.1652/2017) Mussarat Bibi etc. (in C.A.1653/17) Muhammad Ghulam Durrani etc. (in C.A.1654/2017) Muhammad Mushtaq etc. (in C.A.1655/2017) Qari Muhammad Almas etc. (in C.A.1656/17) Riaz Akhtar etc. (in C.A.1657/2017) Syed Zameer Haider Rizvi etc. (in C.A.1658/2017) Liaqat Ali etc. (in C.A.1659/17) Muhammad Arif etc. (in C.A.1660/2017) Waseem Hussain etc. (in C.A.1661/2017) Khalid Pervez etc. (in C.A.1662/17) Muhammad Nazir Kiyani etc. (in C.A.1663/2017) Abdul Majeed etc. (in C.A.1664/2017) Muhammad Ashraf etc. (in C.A.1665/17) C.A. NO. 1631 OF 2017 ETC. 2 Mumtaz Hussain etc. (in C.A.1666/2017) Manzoor Ahmed etc. (in C.A.1667/2017) Mohsin Tanvir etc. (in C.A.1668/17) Jabbar Hussain etc. (in C.A.1669/2017) Syed Manzar Hussain Gardezi etc. (in C.A.1670/2017) Muhammad Saleem Kunber etc. (in C.A.1671/17) Abid Hussain etc. (in C.A.1672/2017) Nawabzada etc. (in C.A.1673/2017) Muhammad Azeem Khan etc. (in C.A.1674/17) Attaullah etc. (in C.A.1675/2017) Syed Nazir Hussain Shah etc. (in C.A.1676/2017) Muhammad Amir etc. (in C.A.1677/17) Mrs. Mehmood Farzana (in C.A.1678/2017) Muhammad Anwar ur Rahman etc. (in C.A.1679/2017) Rafi etc. (in C.A.1680/17) Mumtaz Khan etc. (in C.A.1681/2017) Mrs. Rehana Ghaffar etc. (in C.A.1682/2017) Azad Khan etc. (in C.A.1683/17) Shazia Bibi etc. (in C.A.1684/2017) Imran etc. (in C.A.1685/2017) Zahid Mehmood etc. (in C.A.1686/17) Zafeer Ahmed etc. (in C.A.1687/2017) Arslan Iqbal etc. (in C.A.1688/2017) Mrs. Syeda Khatoon etc. (in C.A.1689/17) Miss Zubaida Khatoon etc. (in C.A.1690/2017) Mrs. Farida Rafi etc. (in C.A.1691/2017) Badar Munir Badar etc. (in C.A.1692/17) Azhar Mehmood etc. (in C.A.1693/2017) Muhammad Daud etc. (in C.A.1694/2017) Shafiq etc. (in C.A.1695/17) Javaid Rauf etc. (in C.A.1696/2017) Ch. Amjad Ali etc. (in C.A.1697/2017) Liaqat Ali etc. (in C.A.1698/17) Akhtar etc. (in C.A.1699/2017) Shaukat Jan etc. (in C.A.1700/2017) Abdul Karim etc. (in C.A.1701/17) Mubarik Ali Satti etc. (in C.A.1702/2017) Mrs. Safia Kalboro etc. (in C.A.1703/2017) Mrs. Sahleha Nasreen etc. (in C.A.1704/17) Miss Shazia Nazir etc. (in C.A.1705/2017) Abdul Rashid Shah etc. (in C.A.1706/2017) Mumtaz Gill etc. (in C.A.1707/17) Muhammad Farhan etc. (in C.A.1708/2017) Alludin etc. (in C.A.1709/2017) M. Sohail Khan etc. (in C.A.1710/17) Syeda Sadaf Ali etc. (in C.A.1711/2017) M. Anwar etc. (in C.A.1712/2017) Miss Shahida Parveen etc. (in C.A.1713/17) Mrs. Shamim Abid etc. (in C.A.1714/2017) Mrs. Rahat Sultana etc. (in C.A.1715/2017) M. Maqsood etc. (in C.A.1716/17) Mrs. Sumira Yasmeen (in C.A.1717/2017) Shahid M. Khan etc. (in C.A.1718/2017) Miss Shazia Bibi etc. (in C.A.1719/17) Mrs. Rukh-e-Afzal etc. (in C.A.1720/2017) M. Amir etc. (in C.A.1721/2017) Mrs. Sumera Aziz etc. (in C.A.1722/17) C.A. NO. 1631 OF 2017 ETC. 3 Asif Ali and others (in C.A.1723/2017) Wajid Bashir etc. (in C.A.1724/2017) Mrs. Samina Zafar etc. (in C.A.1725/17) Muhammad Bukhsh others (in C.A.1726/2017) Mrs. Qamar Zahra etc. (in C.A.1727/2017) Shabbir Nawaz etc. (in C.A.1728/17) Zulfiqar Ahmed others (in C.A.1729/2017) Mrs. Rashda Jabeen etc. (in C.A.1730/2017) Mrs. Najma Khanum etc. (in C.A.1731/17) Mrs. Mah-e-Naz Israr & others (in C.A.1732/2017) Zubaida Khanum etc. (in C.A.1733/2017) Mrs. Shabana Latif etc. (in C.A.1734/17) Mrs. Zahida Naheed etc. (in C.A.1735/2017) Miss Lala Rukh Qurshi etc. (in C.A.1736/2017) Mrs. Raheela Ambreen etc. (in C.A.1737/17) Mrs. Shams un Nisa and others (in C.A.1738/2017) Ms. Farzana Masood etc. (in C.A.1739/2017) Mrs. Kaneez Rubab etc. (in C.A.1740/17) Ms. Raheela Haider and others (in C.A.1741/2017) Mrs. Asia Bashid etc. (in C.A.1742/2017) Mrs. Tayyaba Qaiser etc. (in C.A.1743/17) Mrs. Naureen Iqbal and others (in C.A.1744/2017) Mrs. Shahbana Kausar etc. (in C.A.1745/2017) Tahira Yasmeen Aya etc. (in C.A.1746/17) Tauqeer Ahmad and others (in C.A.1747/2017) Inayat Ullah etc. (in C.A.1748/2017) Muhammad Idrees Qamar etc. (in C.A.1749/17) Syed Arif Hussain Shah etc. (in C.A.1750/2017) Parveen Akhtar etc. (in C.A.1751/2017) Muhammad Yousaf etc. (in C.A.1752/17) Nasreen Anjum Aya etc. (in C.A.1753/2017) Muhammad Ishaq etc. (in C.A.1754/2017) Azhar Mahmood etc. (in C.A.1755/17) Abdul Ghafoor etc. (in C.A.1756/2017) Muhammad Sayyad etc. (in C.A.1757/2017) Muhammad Saleem Khan etc. (in C.A.1758/17) Gul Shad etc. (in C.A.1759/2017) Josheph Rafiq etc. (in C.A.1760/2017) Syeda Sadaf Ali etc. (in C.A.1761/17) Mrs. Mehnaz Ajmal etc. (in C.A.1762/2017) Javed Iqbal etc. (in C.A.1763/2017) Mrs. Rizwana Shahid etc. (in C.A.1764/17) Muhammad Ajmal etc. (in C.A.1765/2017) Iqtidar Hussain etc. (in C.A.1766/2017) Tahir Mehmood etc. (in C.A.1767/17) Adnan Babar etc. (in C.A.1768/2017) Pervaiz Nadeem etc. (in C.A.1769/2017) Asif Younas etc. (in C.A.1770/17) Muhammad Younas etc. (in C.A.1771/2017) James Mashid etc. (in C.A.1772/2017) Muhammad Aslam etc. (in C.A.1773/17) Shoukat Mashid etc. (in C.A.1774/2017) Ms. Yasmin Tahira etc. (in C.A.1775/2017) Muhammad Aslam etc. (in C.A.1776/17) Mrs. Rubina Anjum etc. (in C.A.1777/2017) Habib Khan etc. (in C.A.1778/2017) Ahmed Sher Arshad etc. (in C.A.1779/17) C.A. NO. 1631 OF 2017 ETC. 4 Ms. Nazmina etc. (in C.A.1780/2017) Ms. Tasneem Fatima etc. (in C.A.1781/2017) Muhammad Naveed Arif Khan etc. (in C.A.1782/17) Miss Naz Tahir etc. (in C.A.1783/2017) Syed Sultan Shah etc. (in C.A.1784/2017) Mrs. Shagufta Bibi (in C.A.1785/17) Khawar Idrees etc. (in C.A.1786/2017) Mrs. Naila Iqbal etc. (in C.A.1787/2017) Amjad Badshah etc. (in C.A.1788/17) Waris Malik etc. (in C.A.1789/2017) Imran Anwar etc. (in C.A.1790/2017) Amjad Sohail etc. (in C.A.1791/17) Asif Mashid etc. (in C.A.1792/2017) Mrs. Nusrat Dastagir etc. (in C.A.1793/2017) Mukhtar Ahmed etc. (in C.A.1794/17) Basharat Masih etc. (in C.A.1795/2017) Ali Rehman etc. (in C.A.1796/2017) Munir Ahmed etc. (in C.A.1797/17) Muhammad Zardad etc. (in C.A.1798/2017) Syed Ashraf Ali etc. (in C.A.1799/2017) Mrs. Kausar Ayub etc. (in C.A.1800/17) Malik Waheed Shahzad etc. (in C.A.1801/2017) Ashraf Mashid etc. (in C.A.1802/2017) Muhammad Ajmal etc. (in C.A.1803/17) Mrs. Shaista Manazir etc. (in C.A.1804/2017) Mumtaz Hussain etc. (in C.A.1805/2017) Mrs. Saima Noreen etc. (in C.A.1806/17) Razzaq Ahmed etc. (in C.A.1807/2017) Muhammad Ayub etc. (in C.A.1808/2017) Ejaz Ahmed etc. (in C.A.1809/17) Shah Muhammad Afzal etc. (in C.A.1810/2017) Muhammad Javed etc. (in C.A.1811/2017) Muhammad Asif etc. (in C.A.1812/17) Muhammad Khaliq etc. (in C.A.1813/2017) Nafisa Hanif etc. (in C.A.1814/2017) Qari Zahid Mehmood etc. (in C.A.1815/17) Asif Amin etc. (in C.A.1816/2017) Mrs. veronica etc. (in C.A.1817/2017) Qari Muhammad Siddique etc. (in C.A.1818/17) Syeda Saima Nasir etc. (in C.A.1819/2017) Mrs. Huma Waseem etc. (in C.A.1820/2017) Waheed ur Rehman etc. (in C.A.1821/17) Ms. Saima Parveen etc. (in C.A.1822/2017) Ghulam Rasool and others (in C.A.1823/17) Tariq Khan etc. (in C.A.1824/2017) Muzaffar Hussain Rathore etc. (in C.A.1825/2017) Ms. Shahana Shahid etc. (in C.A.1826/17) Muhammad Khan etc. (in C.A.1827/2017) Basharat Ali etc. (in C.A.1828/2017) M. Tanveer etc. (in C.A.1829/17) Shabbir Ahmed etc. (in C.A.1830/2017) Mrs. Shamim Akhtar etc. (in C.A.1831/2017) Tanveer Ahmed etc. (in C.A.1832/17) S.M. Siraj etc. (in C.A.1833/2017) Zahid Mehmood etc. (in C.A.1834/2017) Mrs. Nadia Noreen etc. (in C.A.1835/17) C.A. NO. 1631 OF 2017 ETC. 5 Shahzad Nasir etc. (in C.A.1836/2017) Miss Rubina Aqeel etc. (in C.A.1837/2017) Irfan Ahmed etc. (in C.A.1838/17) Kausar Afza etc. (in C.A.1839/2017) Atif Rashid etc. (in C.A.1840/2017) Mst. Shamim Akhtar etc. (in C.A.1841/17) Babar Mehmood etc. (in C.A.1842/2017) Ihsan Ahmed etc. (in C.A.1843/2017) Mrs. Naghmana Jabeen etc. (in C.A.1844/17) Qari Muhammad Abbas etc. (in C.A.1845/2017) Noureen Kazmi etc. (in C.A.1846/17) Sajid Masih etc. (in C.A.1847/2017) Mrs. Uzma Khatoon etc. (in C.A.1848/2017) Abdul Manan etc. (in C.A.1849/17) Haroon Rasheed etc. (in C.A.1850/2017) Sajid Mehmood etc. (in C.A.1851/2017) Zeeshan ur Rehman etc. (in C.A.1852/17) Muhammad Saleh etc. (in C.A.1853/2017) Said Rehman etc. (in C.A.1854/2017) Muhammad Ashraf etc. (in C.A.1855/17) Guftar Ahmed etc. (in C.A.1856/2017) Shahid Rauf etc. (in C.A.1857/2017) Farrukh Saleem etc. (in C.A.1858/17) Muhammad Irfan etc. (in C.A.1859/2017) Muhammad Iqbal etc. (in C.A.1860/2017) Zia Ullah Asad etc. (in C.A.1861/17) Falahat Shahid etc. (in C.A.1862/2017) Mrs. Asghari Bano etc. (in C.A.1863/2017) Zia Afzal etc. (in C.A.1864/17) Muhammad Rafaqat etc. (in C.A.1865/2017) Rafiq Masih etc. (in C.A.1866/2017) Javed Iqbal etc. (in C.A.1867/17) Muhammad Yameen etc. (in C.A.1868/2017) Mst. Ishrat Masood etc. (in C.A.1869/17) Zafar Iqbal Bajwa etc. (in C.A.1870/2017) Khalil Ahmad Bajwa etc. (in C.A.1871/2017) Alam Zeb etc. (in C.A.1872/17) Muhammad Iqbal etc. (in C.A.1873/2017) Tanveer Bawar etc. (in C.A.1874/2017) Ghulam Imran Haider etc. (in C.A.1875/17) Muhammad Farid etc. (in C.A.1876/2017) Chan Mehmood Sajjad etc. (in C.A.1877/2017) Nisar Ahmed etc. (in C.A.1878/17) Aslam Shahzad etc. (in C.A.1879/2017) Shaukat Ali etc. (in C.A.1880/2017) Nisar Ali etc. (in C.A.1881/17) Muhammad Asif etc. (in C.A.1882/2017) Arif Mehmood etc. (in C.A.1883/2017) Syed Rizwan Ahmed etc. (in C.A.1884/17) Muhammad Aslam etc. (in C.A.1885/2017) Mazhar Iqbal Kiyani etc. (in C.A.1886/2017) Munir Masih etc. (in C.A.1887/17) Shaukat Hayat etc. (in C.A.1888/2017) Nazir Mehmood etc. (in C.A.1889/2017) Syed Akbar Hussain etc. (in C.A.1890/17) Syed Tahir Hussain etc. (in C.A.1891/2017) Ms. Nadia etc. (in C.A.1892/17) C.A. NO. 1631 OF 2017 ETC. 6 Khalid Usman etc. (in C.A.1893/2017) Muhammad Akbar Masood etc. (in C.A.1894/2017) Zafar Ejaz etc. (in C.A.1895/17) Azhar Ali etc. (in C.A.1896/2017) Arban Mehmood etc. (in C.A.1897/2017) Arif Khan etc. (in C.A.1898/17) Atif Aman Butt etc. (in C.A.1899/2017) Muhammad Siddique etc. (in C.A.1900/2017) Ghulam akbar etc. (in C.A.1901/17) Zafar Khan Khattak etc. (in C.A.1902/2017) Babar Sultan etc. (in C.A.1903/2017) Younas Masih etc. (in C.A.1904/17) Muhammad Feroz etc. (in C.A.1905/2017) Taj Muhammad etc. (in C.A.1906/2017) Muhammad Yousaf etc. (in C.A.1907/17) Muhammad Riaz etc. (in C.A.1908/2017) Sibghat ur Rehman etc. (in C.A.1909/2017) Munir Akhtar Qureshi etc. (in C.A.1910/17) Nasir Ahmed etc. (in C.A.1911/2017) Zaheer Ahmed etc. (in C.A.1912/2017) Manzoor Ahmed etc. (in C.A.1913/17) Muhammad Zahir Shah etc. (in C.A.1914/2017) Muhammad Tariq etc. (in C.A.1915/2017) Muhammad Khalid etc. (in C.A.1916/2017) Muhammad Ejaz etc. (in C.A.1917/17) Muhammad Iqbal etc. (in C.A.1918/2017) Azad Khan etc. (in C.A.1919/2017) Syed Ulmer Shah etc. (in C.A.1920/17) Moeen ud Din Akhtar etc. (in C.A.1921/2017) Zarif Hussain Siddique etc. (in C.A.1922/2017) Fazil Wadood etc. (in C.A.1923/17) Abdul Salam etc. (in C.A.1924/2017) Kamran Khan etc. (in C.A.1925/2017) Muhammad Bashir etc. (in C.A.1926/17) Zulfiqar Ali etc. (in C.A.1927/2017) Khalid Mehmood Khan etc. (in C.A.1928/2017) Muhammad Shafi etc. (in C.A.1929/17) Khadim Hussain Shah etc. (in C.A.1930/2017) Nasir Mehmood Satti etc. (in C.A.1931/2017) Tahir Masih etc. (in C.A.1932/17) Shahid Abbas Shah etc. (in C.A.1933/2017) Farah Rehman etc. (in C.A.1934/2017) Shamshad Ghuri etc. (in C.A.1935/17) Muhammad Riaz etc. (in C.A.1936/2017) Muhammad Salman Siddique etc. (in C.A.1937/2017) Fiaz Ahmed etc. (in C.A.1938/17) Riaz Ali etc. (in C.A.1939/2017) Saeedullah etc. (in C.A.1940/2017) Yasir Mehmood etc. (in C.A.1941/17) Umar Baksh etc. (in C.A.1942/2017) Muhammad Fayaz etc. (in C.A.1943/2017) Saima Rana etc. (in C.A.1944/17) Muhammad Kaleem Khalid etc. (in C.A.1945/2017) Mehmood Arif etc. (in C.A.1946/2017) Zeeshan Khan etc. (in C.A.1947/17) Abdul Qayyum etc. (in C.A.1948/2017) Muhammad Naeem etc. (in C.A.1949/2017) C.A. NO. 1631 OF 2017 ETC. 7 Azhar Qayyum etc. (in C.A.1950/17) Pervaiz Masih etc. (in C.A.1951/2017) Muhammad Munir etc. (in C.A.1952/2017) Shaheen Ara etc. (in C.A.1953/17) Mrs. Parveen Zaidi etc. (in C.A.1954/2017) Muhammad Kamran etc. (in C.A.1955/17) Miss Tasleem Alia etc. (in C.A.1956/2017) Azmat Ullah Khan etc. (in C.A.1957/2017) Faiza Pervaiz etc. (in C.A.1958/17) Mushtaq Ahmed etc. (in C.A.1959/2017) Muhammad Rizwan etc. (in C.A.1960/2017) Muhammad Roshan etc. (in C.A.1961/17) Rukhsana Yasmeen etc. (in C.A.1962/2017) Noreen Altaf etc. (in C.A.1963/2017) Fehmida Akhtar etc. (in C.A.1964/17) Junaid Haider etc. (in C.A.1965/2017) Waqar Ahmed etc. (in C.A.1966/2017) Waqar Hussain Shah etc. (in C.A.1967/17) Shahid Hussain etc. (in C.A.1968/2017) Abdul Razzaq etc. (in C.A.1969/2017) Bilal Ahmed etc. (in C.A.1970/17) Muhammad Pervez etc. (in C.A.1971/2017) Nusrat Iqbal etc. (in C.A.1972/2017) Parveen Akram etc. (in C.A.1973/17) Samina Hameed etc. (in C.A.1974/2017) Amir Shahzad etc. (in C.A.1975/2017) Ghazala Ghafoor etc. (in C.A.1976/17) Tayyaba Sadaf etc. (in C.A.1977/2017) Shamim Akhtar etc. (in C.A.1978/17) Qamar Jabeen etc. (in C.A.1979/2017) Tahira Naheed etc. (in C.A.1980/2017) Muhammad Waseem etc. (in C.A.1981/17) Naseem Akhtar etc. (in C.A.1982/2017) Shahnaz Javed etc. (in C.A.1983/2017) Tariq Mahmood etc. (in C.A.1984/17) Syed Sajjad Hussain Shah etc. (in C.A.1985/2017) Hajira Bibi etc. (in C.A.1986/2017) Memoona Aslam etc. (in C.A.1987/17) Chan Sanobar etc. (in C.A.1988/2017) Shaheen Niazi etc. (in C.A.1989/2017) Naseer Ahmed etc. (in C.A.1990/17) Lashma Parveen etc. (in C.A.1991/2017) Ahmed Bilal Karim etc. (in C.A.1992/2017) Tabssum Begum etc. (in C.A.1993/17) Farhan Abbas etc. (in C.A.1994/2017) Muhammad Khan etc. (in C.A.1995/2017) Surriya Ashfaq etc. (in C.A.1996/17) Muhammad Hanif etc. (in C.A.1997/2017) Ashraf Masih etc. (in C.A.1998/2017) Ansar Mahmood etc. (in C.A.1999/17) Nasreen Agai etc. (in C.A.2000/2017) Sajid Mehmood etc. (in C.A.2001/17) Muhammad Munir etc. (in C.A.2002/2017) Mehmood Ali etc. (in C.A.2003/2017) Naveeda Sher etc. (in C.A.2004/17) Imtiaz Hussain etc. (in C.A.2005/2017) Matloob Hussain etc. (in C.A.2006/2017) C.A. NO. 1631 OF 2017 ETC. 8 Bilqees Bano etc. (in C.A.2007/17) Ibadat Hussain etc. (in C.A.2008/2017) Ms. Azra Batool etc. (in C.A.2009/2017) Mushtaq Masih etc. (in C.A.2010/17) Nazia Bano etc. (in C.A.2011/2017) Syed Shahrukh Farhat Bukhari etc. (in C.A.2012/2017) Yasmin Fatima etc. (in C.A.2013/17) Muhammad Ismail etc. (in C.A.2014/2017) Naheed Akhtar etc. (in C.A.2015/2017) Zahida Rashid etc. (in C.A.2016/17) Moeen Shahzad etc. (in C.A.2017/2017) Hifsa Hameed etc. (in C.A.2018/2017) Rizwana Bashir etc. (in C.A.2019/17) Muhammajd Sabir etc. (in C.A.2020/2017) Uzma Nawaz etc. (in C.A.2021/2017) Ghazanfar Abbas etc. (in C.A.2022/17) Fouzia Shamshad etc. (in C.A.2023/2017) Saira Shaheen etc. (in C.A.2024/17) Naheed Rauf etc. (in C.A.2025/2017) Mehboob ur Rehman etc. (in C.A.2026/2017) Shahnaz Zafar etc. (in C.A.2027/17) Abdul Rahim etc. (in C.A.2028/2017) Muhammad Umair etc. (in C.A.2029/2017) Ume-e-Farwa etc. (in C.A.2030/17) Muhammad Ashfaq Rana etc. (in C.A.2031/2017) Haleema Sadia etc. (in C.A.2032/2017) Mehboob Hussain etc. (in C.A.2033/17) Muhammad Javed etc. (in C.A.2034/2017) Khalid Mehmood etc. (in C.A.2035/2017) Ashfaq Hussain etc. (in C.A.2036/17) Shabir Ahmad etc. (in C.A.2037/2017) Zulfiqar Khan etc. (in C.A.2038/2017) Muhammad Imran etc. (in C.A.2039/17) Aqib Mehmood Khan Niazi etc. (in C.A.2040/2017) Iftikhar Ahmed etc. (in C.A.2041/2017) Rifat Sultana etc. (in C.A.2042/17) Bulbul Jehan etc. (in C.A.2043/2017) Muhammad Majid etc. (in C.A.2044/2017) Rukhsana Amin etc. (in C.A.2045/17) Rana Muhammad Riaz etc. (in C.A.2046/2017) Ms. Robina Sadiq etc. (in C.A.2047/2017) Shoukat Ali etc. (in C.A.2048/17) Ehsan Ullah Butt etc. (in C.A.2049/2017) Fayyaz Hussain etc. (in C.A.2050/2017) Mian Mubeen Sarwar etc. (in C.A.2051/17) Irfan Waseem etc. (in C.A.2052/2017) Tahir Mehmood etc. (in C.A.2053/2017) Rashid Ali etc. (in C.A.2054/17) Hassan Mirza etc. (in C.A.2055/2017) Syed Imdad Hussain Shah etc. (in C.A.2056/2017) Maskhoor Khan etc. (in C.A.2057/17) Muhammad Naseebullah etc. (in C.A.2058/2017) Farah Ahmed etc. (in C.A.2059/2017) Aisha Fareed etc. (in C.A.2060/17) Umair Hussain etc. (in C.A.2061/2017) Arif Javed etc. (in C.A.2062/2017) C.A. NO. 1631 OF 2017 ETC. 9 Rukhsana Begum etc. (in C.A.2063/17) Akbar Ali etc. (in C.A.2064/2017) Nasira Naseem etc. (in C.A.2065/2017) Hafiz Muhammad Subhani etc. (in C.A.2066/17) Imran Nazir etc. (in C.A.2067/2017) Imran Bukhsh etc. (in C.A.2068/2017) Muhammad Aslam etc. (in C.A.2069/17) Syed Kashif Hussain etc. (in C.A.2070/2017) Fazal Ahmed etc. (in C.A.2071/2017) Nadeem Ashiq etc. (in C.A.2072/17) Ali Muhammad etc. (in C.A.2073/2017) Ali Haider Zaidi etc. (in C.A.2074/2017) Saima Bibi Awan etc. (in C.A.2075/17) Waseem Ahmed etc. (in C.A.2076/2017) Mrs. Shamim Bibi etc. (in C.A.2077/2017) M. Habib Khan etc. (in C.A.2078/17) Mrs. Yasmin Akhter etc. (in C.A.2079/2017) Shahzad Zaman etc. (in C.A.2080/2017) Shah Khalid etc. (in C.A.2081/17) Syed Amjad Hussain etc. (in C.A.2082/2017) Rizwan Qayyum etc. (in C.A.2083/2017) Shahbaz Ahmed Khan etc. (in C.A.2084/17) Mubashir Hussain Shah etc. (in C.A.2085/2017) Iftikhar Ahmed etc. (in C.A.2086/2017) Tariq Hussain etc. (in C.A.2087/17) Kamran Ali etc. (in C.A.2088/2017) Muhammad Shahid Rasheed etc. (in C.A.2089/2017) Hady Hussain etc. (in C.A.2090/17) Amar Shahzad etc. (in C.A.2091/2017) Miss Farhat Naseem etc. (in C.A.2092/2017) Abdul Rehman etc. (in C.A.2093/17) Hafeez Ahmed etc. (in C.A.2094/2017) Imran Khan etc. (in C.A.2095/2017) Muhammad Yasir etc. (in C.A.2096/17) Tariq Mehmood etc. (in C.A.2097/2017) Mrs. Rehana Kausar etc. (in C.A.2098/2017) Habib Ullah Niazi etc. (in C.A.2099/17) Habib Ullah etc. (in C.A.2100/2017) Muhammad Khan etc. (in C.A.2101/2017) Syed Naushad Ahmad etc. (in C.A.2102/2017) Taj Muhammad etc. (in C.A.2103/17) Yasir Mehmood etc. (in C.A.2104/2017) Zafar Hayat etc. (in C.A.2105/2017) Hafeez ur Rehman Soomro etc. (in C.A.2106/17) Muhammad Ramzan etc. (in C.A.2107/2017) Syed Muhammad Irshad etc. (in C.A.2108/2017) Rafaqat Ali etc. (in C.A.2109/17) Muhammad Jaffar etc. (in C.A.2110/2017) Farhan Saleem etc. (in C.A.2111/2017) Shahid Ilyas etc. (in C.A.2112/17) Dr. farrukh F. Lodhi etc. (in C.A.216/2016) Mubashir Iqbal Zafar etc. (in C.A.806/2016) Muhammad Luqman etc. (in C.A.807/16) Allah Bakhsh etc. (in C.A.808/2016) Muhammad Riaz etc. (in C.A.809/2016) Zulfiqar Ali etc. (in C.A.810/16) C.A. NO. 1631 OF 2017 ETC. 10 Muhammad Attique ur Rehman etc. (in C.A.811/2016) …Respondents(s) For the Appellant(s) Mr. Sajid Ilyas Bhatti, DAG (in all cases) Syed Rifaqat Hussain Shah, AOR Ms. Saadia Kanwal, S.O Fin. Mr. Abid Hussain Channa, S.O Fin. Mr. Sajid Javed, Asstt. Legal Fin. Mr. Abdul Razzaq, AAO MEG Rawalpindi For the Respondent(s) In-person For the Respondent(s) Mr. Muhammad Ilyas Lodhi, ASC (in C.A.216/16) Malik Itaat Hussain Awan, ASC Amicus Curiae: Mr. Muhammad Makhdoom Ali Khan, Sr. ASC Mr. Sikandar Bashir Mohmand, ASC Date of Hearing 17.01.2018. JUDGMENT UMAR ATA BANDIAL, J.— By leave of this Court granted on 23.02.2016, 01.4.2016 and 12.12.2017 in the several connected appeals before us, the appellant Federal Government challenges the judgments delivered on common questions of fact and law by the learned Federal Service Tribunal on 05.10.2015, 11.01.2016 and 18.07.2017. The judgments impugned in the connected appeals declare the respondent employees of different institutions functioning under the Directorate General of Special Education (“DGSE”) to be entitled to payment of Health Allowance granted by the Federal Government vide its Office Memoranda dated 04.02.2012 and 06.2.2012. These Memoranda are issued by the Finance Division (Regulations Wing) Government of Pakistan pursuant to approval granted by the Prime Minister under the Rules of Business, 1973. It would be useful to reproduce the two C.A. NO. 1631 OF 2017 ETC. 11 memoranda containing the terms and conditions for the grant of Health Allowance to eligible persons: “Government of Pakistan Finance Division (Regulations Wing) F.No.2(13)R-2/2011 Islamabad, the 04th Feb,2012 OFFICE MEMORANDUM Subject: GRANT OF ADHOC ALLOWANCE EQUAL TO ONE BASIC PAY AT THE INITIAL OF THE SCALE TO THE HEALTH PERSONNEL IN BPS SCHEME. The undersigned is directed to say that the Ordinance No.VI of 2011 that sanctioned the Career Structure for Health Personnel Scheme (CSHP) has lapsed on 26.12.2011. Accordingly, CSHP is no longer in the field and all health personnel have consequently reverted to the BPS scheme. In order to compensate health personnel for the loss of benefits sought under CSHP while preserving their status as Civil Servants, it has been decided by the Federal Government to grant adhoc allowance equal to one basic pay at the initial of the scale to the health personnel in the employment of Federal Government, in BPS scheme, with effect from 1st January, 2012. This will be in addition to their existing pay/allowances in BPS Scheme. 2. This Division’s OM No.2(13)R-2/2011-698 dated 17th November, 2011 may be treated as withdrawn w.e.f. 26.12.2011. Sd/-- (M. Munir Sadiq) Deputy Secretary (R-I)” *** “Government of Pakistan Finance Division (Regulations Wing) F.No.2(13)R-2/2011-777 Islamabad, the 06th February,2012 OFFICE MEMORANDUM Subject: GRANT OF ADHOC ALLOWANCE EQUAL TO ONE BASIC PAY OF RUNNING SALARY TO THE HEALTH PERSONNEL IN BPS SCHEME. In continuation of Finance, Division’s O.M. No.F.2(13)R-2/2011, dated 4.2.2012, it has been decided by the Federal Government to grant benefit of one basic pay of running salary as Health Allowance to the health personnel in the employment of Federal Government, in BPS scheme, with effect from 1st January, 2012. This will be in addition to their existing allowances in BPS Scheme. Also grant of stipend amounting to Rs.50,000 per month to the postgraduate residents and Rs.24,000 per month for House Officers respectively w.e.f. 1.7.2011 will continue. Sd/-- (Manzoor Ali Khan) Sr. Joint Secretary (Regulations)” (emphasis supplied) 2. Learned Deputy Attorney General has contended that the Health Allowance granted by the Federal Government is available to health personnel in the employment of the Federal Government in the BPS scheme at three hospitals established in C.A. NO. 1631 OF 2017 ETC. 12 Islamabad, namely, Pakistan Institute of Medical Sciences (“PIMS”), Federal Government Polyclinic (“FGP”) and National Institution of Rehabilitation Medicines (“NIRM”). The employees at these hospitals do not have a career structure in place after the Career Structure for Health Personnel Scheme Ordinance, 2011 (“Ordinance”) lapsed on 26.1.2011. The Health Allowance was accordingly granted by the Federal Government as a form of compensation. It is clear from the two memoranda dated 04.2.2012 and 06.2.2012 reproduced above that the Health Allowance is granted to “health personnel”. However, the composition of the category of employees that are eligible for the benefit has not been provided therein. The respondents who are several hundred in number are unrepresented by counsel. In view of the fact that a large number of employees are affected by the instant controversy, the Court has sought assistance from Mr. Muhammad Makhdoom Ali Khan, Sr. ASC and Mr. Sikandar Bashir Mohmand, ASC as amicus curiae in the matter. Mr. Sikandar Bashir Mohmand, ASC made able submissions before the Court that highlighted important facts and documents on record which simplified the controversy appreciably. 3. It transpires that an Office Memorandum dated 27.03.2012 by the Finance Division (Regulations Wing) clarifies that the term “health personnel” used in the above mentioned memoranda bears the meaning given to that expression in Section 2(b) of the Ordinance. This definition refers to the contents of Schedule-I to the Ordinance which specifies the service providers who qualify as health personnel. A perusal of Schedule-I shows that five categories of service providers are C.A. NO. 1631 OF 2017 ETC. 13 classified as health personnel, namely: Doctors, Allied, Nurses, Paramedics and Support. The services specified under the categories of Paramedics and Support include Teachers, Audiovisual Operators, Technicians, Librarians, etc. 4. The administrative Ministry for the health institutions of the Federal Government at Islamabad is the Ministry of Capital Administration and Development Division (“CADD”). It is an admitted fact that vide order dated 13.03.2013 the Ministry of CADD granted the Health Allowance to the employees of the DGSE and its allied special education centers/ institutions including National Trust for the Disabled (“NTD”) and the National Council for Rehabilitation of Disabled Persons (“NCRDP”). The respondents were thereby acknowledged as beneficiaries of the said grant and were paid the Health Allowance with effect from 01.1.2012 until 27.10.2014, when the Finance Division informed the Accountant General Pakistan Revenue (“AGPR”) that only health personnel working in Federal Government hospitals and clinics were qualified to receive the Health Allowance. The AGPR correspondingly instructed the DGSE to stop payment of the said allowance to its employees as no budget allocation for the said emolument had been made in the financial year 2014-15. 5. The discontinuation of their Health Allowance was taken to the Islamabad High Court by some of the respondents. Vide order dated 17.9.2015 the learned High Court referred the dispute to the Secretary CADD for passing a speaking order thereon; and till then restrained recovery of past payments of the Health Allowance from the affected employees of DGSE and allied centers. The Secretary CADD heard the parties and by C.A. NO. 1631 OF 2017 ETC. 14 order dated 21.3.2016 rejected the entitlement of the respondents to receive the said allowance. The principal ground of his decision is that employees of the DGSE were engaged in the process of education, training and rehabilitation of disabled children and therefore did not fall within the ambit of a health organization. The respondents successfully challenged the said order before the learned Federal Service Tribunal which has, inter alia, by the impugned judgment dated 18.07.2017 declared that the respondents are entitled to the grant of Health Allowance. 6. Learned Deputy Attorney General has contended that after the lapse of the Ordinance that had provided a career structure for the doctors, nurses and paramedics working in PIMS, FGP and NIRM, the Health Allowance was granted by the Federal Government as compensation to the said health personnel. He was, however, unable to show any contemporaneous direction issued by the Ministry of CADD or the Ministry of Finance that restricted the grant of the Health Allowance to the claimed employees of the three hospitals specified by him. As already noted above, the definition of health personnel provided in the Ministry of Finance Office Memorandum dated 27.3.2012 is wide in scope and therefore unhelpful to his plea. 7. We have examined the definition of “health personnel” adopted by said memorandum dated 27.3.2012 from Section 2(b) of the Ordinance which is to the following effect: “b) “health personnel” means a person who holds a post in any institute or organization delivering services in the health sector and included in Schedule-I, but does not include: i) a person who is on deputation to the Federal Government from any Province or other authority; C.A. NO. 1631 OF 2017 ETC. 15 ii) a person who is employed on contract, or on work charged basis or who is paid from contingencies.” 8. It is noted that the foregoing definition of health personnel covers persons holding posts in any institute or organization who are delivering services in the health sector that are included in Schedule-I to the Ordinance. Learned Deputy Attorney General was unable to distinguish the respondents, who are employees of the DGSE and allied institutions/centers, NCRDP and NTD, from the paramedic and support staff positions that qualify as health personnel according to Schedule-I to the Ordinance. It is not denied by the appellant that education, training and rehabilitation of disabled persons are services provided in the health sector. These services fall within the terms of Schedule-I to the Ordinance and therefore the providers thereof qualify as health personnel. 9. Accordingly, not only do the respondents fall within the category of persons who are, in terms of Finance Division Memoranda dated 06.2.2012 and 27.3.2012, eligible for grant of the Health Allowance but their entitlement has in fact been admitted by both the Ministry of CADD and Ministry of Finance. In this respect the aforementioned letter dated 13.3.2013 issued by the Ministry of CADD is referred. Also the affidavit of the Secretary Finance, Government of Pakistan filed in the Islamabad High Court pursuant to that Court’s order dated 20.3.2015 passed in Writ Petition No. 4007 of 2014, specifically records that the proposal approved by the Prime Minister vide Summary dated 25.1.2012 did not restrict admissibility of the Health Allowance to the personnel of the three hospitals (identified by the learned DAG). For that reason the Finance C.A. NO. 1631 OF 2017 ETC. 16 Division Memoranda dated 04.2.2012 and 6.2.2012 made the allowance available to all health personnel employed by the Federal Government in the BPS Scheme. 10. As a result, the said allowance was paid to the health personnel of the DGSE and its allied institutions until 27.10.2014 when the Finance Division instructed the AGPR to confine the grant of the allowance to employees of Federal Government hospitals and clinics. This instruction represents merely a change of opinion which is not occasioned by an amendment in the terms of eligibility for the Health Allowance. Therefore, as the Memoranda dated 04.2.2012, 06.2.2012 and 27.3.2012 issued by the Finance Division, Government of Pakistan still hold the field in their original terms, there is no merit in the objection by the learned DAG to the entitlement of the respondents to claim and receive the Health Allowance. 11. As a secondary and also tenuous argument, learned Deputy Attorney General contended that the Health Allowance is granted under executive fiat without any statutory backing therefore the same can be withdrawn by the Federal Government at any time. That is clearly a flawed contention. It is admitted that grant of the Health Allowance and the terms of eligibility to receive the same were determined by the competent authority, Ministry of Finance in accordance with Rules of Business of the Federal Government. The original terms of the said lawful grant still hold the field. These were acted upon and payment of the Health Allowance to the respondents has conferred a vested right upon them. In such circumstances, the executive is barred by the rule of locus poenitentiae from unilaterally rescinding and retrieving the benefit availed by its recipients. Reference is made C.A. NO. 1631 OF 2017 ETC. 17 to Pakistan, through the Secretary, Ministry of Finance vs. Muhammad Himayatullah Farukhi (PLD 1969 SC 407) and The Engineer-in-Chief Branch vs. Jalaluddin (PLD 1992 SC 207). Therefore without a change of the terms of eligibility for the Health Allowance even the prospective exclusion of the respondents from receipt of the benefit shall constitute arbitrary and unlawful action. 12. In the circumstances, we do not find any error or defect in the impugned judgments of the learned Federal Service Tribunal dated 05.10.2015, 11.1.2016 and 18.7.2017. Consequently, these appeals are dismissed and the entitlement of employees of the DGSE, allied institutions/centers, NCRDP and NTD to receive the Health Allowance is affirmed. Chief Justice Judge Judge Islamabad 17.01.2018 Naseer Not approved for reporting.

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE GULZAR AHMED MR. JUSTICE MAQBOOL BAQAR CIVIL APPEALS NO.1646 & 2000/2006 AND CIVIL PETITION NO.782-K/2009 (Against the judgment dated 18.2.2009, 10.8.2006 of the High Court of Sindh, Karachi passed in C.P. No.D-2659/1994, C.P. No.34-D/1995) M/s MFMY Industries Ltd. …in C.A.1646/2006 M/s Sapphire Textile Mills Ltd. …in C.A.2000/2006 M/s Gatron Industries Ltd. …in C.P.782-K/2009 …Appellant(s) VERSUS Federation of Pakistan through M/o Commerce etc. …in C.A.1646/2006 Pakistan through Secretary M/o Finance etc. …in C.A.2000/2006 Pakistan through Secretary M/o Finance etc. …in C.P.782-K/2009 …Respondent(s) For the appellant(s): Mr. Tariq Javed, ASC (in C.A.1646/2006) Mr. Abdul Ghaffar Khan, ASC (in C.A.2000/2006) For FBR: Mr. M. Bilal, Sr. ASC Raja Abdul Ghafoor, AOR Departmental Representative: For Federation: Imran Mehmood, MCB Mr. Sohail Mahmood, D.A.G. Date of hearing: 21.04.2015 … JUDGMENT MIAN SAQIB NISAR, J.- CIVIL APPEALS NO.1646 & 2000/2006: These appeals are being disposed of on a short point i.e. whether the impugned judgment passed by the learned High Court is proper judicial dispensation or otherwise. The relevant facts in this context are:- the appellants filed constitution petitions before the learned High C.As.1646 & 2000 of 2006 & C.P.782-K of 2009 -: 2 :- Court of Sindh, whereby they assailed the imposition of import fee enforced through certain SROs on various grounds and also sought relief of refund of the amount already paid by them to the Customs Department on account of the above. The hearing in the matters took place on 22.3.2005 and 4.5.2005 respectively and the judgment was reserved, which was ultimately announced on 10.8.2006 after a lapse and delay of almost one year and three months. The appellants had challenged the said judgment herein and leave was granted, inter alia, on the point(s) that since the impugned judgment had been passed in the matters after an inordinate delay, whether it was a case fit for remand of the matters to the learned High Court for hearing and decision afresh. 2. Learned counsel for the appellants while arguing these appeals has confined today to the said point and submitted that because of such a long delay, the judgment in question is invalid and improper judicial dispensation and on this score alone the same (judgment) stands vitiated. This is the proposition requiring resolution vide the present verdict. 3. Heard. Before dilating upon the proposition in hand, I feel constrained to briefly highlight the importance of judiciary/judicature as a vital component of the State. A State, as understood today, constitutes three foundational organs i.e. Legislature, Executive and Judicature. In ordinary parlance, these (organs) are also known to be the three pillars of the State. The political philosophers, jurists, constitutional experts and even judicial opinions pronounced all over the world (specially in the countries having the democratic system/set up for governance) are unanimous in their views that the entire structure of the State is founded, built upon, and secured only on account of the said pillars. And due to lack/absence or imbalance in respect of any of these organs/pillars, the very concept of State is periled and its existence is put at risk. C.As.1646 & 2000 of 2006 & C.P.782-K of 2009 -: 3 :- The main object and function of the legislative branch of the State is to make laws, which (laws) obviously define and prescribe the rights and obligations of the citizens/persons and the duties of the State; these laws ordain the functions which the State can and has to perform vide various organs thereto. The legislative limb also enables a broader mechanism for State governance by drawing policies and issuing and passing resolutions on numerous important aspects expedient for the effective functioning of the State. It may also provide for a machinery through which laws and directives etc. are or should be implemented and enforced. It (legislature) formulates and constitutes the positive law of the State. Whereas the object of executive is to not only carry out and run the affairs of the State in accordance with the laws made by the legislature and any policy/direction given to it, but also comply with laws, follow the established rules, norms and standards expedient and necessary for the due administration of the State. Thus, it (executive) is responsible for the governance of the State and for carrying out its affairs in consonance with the Rule of law. According to the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution), the executive authority of the Federation shall be exercised in the name of the President by the Federal Government, consisting of the Prime Minister and the Federal Minister. The executive authority shall act through the Prime Minister who shall be the Chief Executive of the Federation (see Article 90 of the Constitution). Furthermore President shall appoint Federal Ministers and Ministers of State from amongst the members of Majlis Shoora on the advice of the Prime Minister (see Article 92). Thus it is clear that the top echelon of the State administration comes into being through and from the Parliament, which comprises of the chosen representatives of the people. These chosen representatives simultaneously C.As.1646 & 2000 of 2006 & C.P.782-K of 2009 -: 4 :- act as the legislators and the administrators. The administrative/executive branch, having thus been elected by the people of State, while performing its functions keeps in view its political expediencies, the commitments made to the electorate per its manifesto and the policies which seem necessary in its own judgment for its future political interests; inter alia for these factors and in the exuberant pursuit of its goals, the executive may compromise the well established rules of governance which not only results in misuse and abuse of authority, but may also lead to violation of the rights of the citizens consciously or inadvertently or cause violation of the social, economic and political rights of the people in general or in particular of those who do not agree with the government in power. Anyhow, as highlighted above, according to the constitutional setup of our country, executive primarily emanates out of the legislative branch of the State i.e. out of the chosen representative of the people, therefore, there remains no strict separation of power between the legislature and the executive. Rather practically there is considerable harmony and also collaboration between these two branches of the State. These branches at times support and bolster each other and while they do so, the possibility that either of the two branches exceeds its jurisdiction and empowerment or misuses the same cannot be ruled out. For example, on account of some executive expediency, the legislature, on the behest of the executive, may pass certain laws, which otherwise may not conform to the parameters (ultra vires) of constitutionality, but are simply promulgated with the object of meeting executive exigencies. Likewise, the elements of abuse, excessive use of power, arbitrary exercise of power, whimsical, non-transparent, unfair and unreasonable action(s) on part of the executive including the violation of fundamental rights have been commonly noticed and also interfered with by the judiciary to protect and safeguard the rights of the C.As.1646 & 2000 of 2006 & C.P.782-K of 2009 -: 5 :- citizens/persons, who are affected on account of such abuses and misuses. It is in the aforementioned circumstances that where the legislature or the executive branch has erred in the exercise of its jurisdiction and is responsible for any of the deviations indicated above, that an affected person for the purposes of seeking redressal of his grievance against such wrong and/or for enforcing his rights under the law, including his fundamental rights as enshrined in the Constitution, comes forth to the judicature by knocking at its door (note: in the context of above, I am purposely not making reference to any private litigation between two individuals). This is the last resort for a beleaguered and aggrieved person. It is thus that the judicature is conceived, perceived and is meant to act as the final arbiter not only vis-à- vis the interpretation of the Constitution, the statutory law(s), but is to also ensure that RULE OF LAW is adhered to and the rights of the citizens/persons approaching the courts are determined and enforced against the Might of the State. It is commonly and jurisprudentially known all over the republican and democratic world that the courts are the guardians of the Constitution and are responsible for preserving and securing the rights of the aggrieved citizens/persons as against the State. The discussion above briefly provides for the importance of the judicial branch of the State. Besides, the pivotal, cardinal and important role of the judicature can be assessed from the quote of Hazrat Ali (R.A.) who avowed “a society with kufr may be sustained but not the one where there is injustice”. In Asma Jillani’s case (PLD 1972 SC 139 @ 182), Chief Justice Hamood-ur-Rahman while impressing upon the role of judiciary remarked “It is this that led Von Hammer, a renowned orientalist, to remark that under the Islamic system the law rules through the utterance of justice, and the power of the Governor carries out the utterance of it”. I am also reminded to mention here (as it is commonly known, but I have no authentic version of it), that during the second world war, a C.As.1646 & 2000 of 2006 & C.P.782-K of 2009 -: 6 :- question was posed to Winston Churchill, Britain Prime Minister, whether Britain would win the war or not, he responded to the effect that if there was a functional judiciary in Britain, there was no doubt that Britain would win. Once Justice Thurgood Marshall, Judge of the Supreme Court of the United States of America while commenting on the importance of the judiciary remarked, “The greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people was an ignorant, a corrupt, or a dependent judiciary”. In furtherance to this, I would also like to add here that judiciary which lacks courage to do justice without fear and favour, is biased, suffers from the vice of self-interest, is tardy, indolent and incompetent and has no urge, will, passion and ability to decide the cases/disputes before it expeditiously, it falls in the romance of aggrandizement and populism is a danger to the State and the society. Whereas, a great virtue of a judicial functionary is that he applies the rules of balancing and proportionality while performing his functions and discharging his duties. Provided above, are some good illustrations of the importance and significance of the judiciary in a society and within a State. I may like to add here that one of the most important differences between developed countries on one hand and developing or under developed countries on the other is the respect for, adherence to and enforcement of THE RULE OF LAW. I have no doubt in my mind that this ideal can only be achieved through an independent and capable judiciary, which is beyond the reach, control and influence of other branches of the State. The judicature has to act as a natural umpire who keeps a check on the exercise of power by other organs of the State so as to ensure that the rights of citizens/persons are not affected and trampled contrarily to law. 4. In view of the above discourse, when the judiciary enjoys such a special position, privilege and status in the functioning of the State, it is C.As.1646 & 2000 of 2006 & C.P.782-K of 2009 -: 7 :- also saddled with the onerous duty of discharging its functions efficiently, effectively and with utmost diligence and care. One of the responsibilities in this context, universally known, is the duty of the Judge to decide the cases expeditiously, because it is a known jurisprudential concept that “justice delayed is justice denied”. The courts must, thus, exercise all the authority conferred upon them to prevent any delays which are being caused at any level by any person whosoever. I am mindful of the fact that in any litigation there are certain procedural implications without which there shall be no discipline left for the regulation of a lis before a court. These procedural and legal aspects of the matter are equally important, which must be followed in letter and spirit. However, barring such time that is consumed for adherence with these legal and procedural aspects, the courts are bound to decide the matter as promptly as possible especially once the trial and the hearing of the case(s) is complete (note: in the trial case) and in appeals, revisions and constitutional matters, once the hearing of the matter (when arguments are concluded) has taken place and has been concluded. 5. Termination of a lis undoubtedly is through a verdict of a court which is a decision disposing of a matter in dispute before it (the Court) and in legal parlance, it is called a “JUDGMENT”. It is invariably known that a Judge finally speaks through his judgment. According to Black’s Law Dictionary, a judgment has been defined to mean “A court’s final determination of the rights and obligations of the parties in a case” and per Henry Campbell Black, A Treatise on the Law of Judgment “An action is instituted for the enforcement of a right or the redress of an injury. Hence a judgment, as the culmination of the action declares the existence of the right, recognizes the commission of the injury, or negatives the allegation of one or the other. But as no right can exist without a correlative duty, nor any invasion of it without a corresponding obligation to make amends, the judgment necessarily affirms, or else denies, that such a duty or such a liability rests upon the person against whom the aid of the law is invoked”. These definitions C.As.1646 & 2000 of 2006 & C.P.782-K of 2009 -: 8 :- are adequately self-explanatory. In our procedural law (civil), judgment as defined in Section 2(9) of Code of Civil Procedure means “the statement given by the judge of the grounds of a decree or order”. It should be emphasized here that a judgment should supply adequate reasons for the conclusion reached and arrived at and should be reflective of application of proper judicial mind by the Judge and it should not be a mechanical and not speaking judgment in nature. It may be reiterated that without a judgment, there is no concept of justice and/or fruitful outcome of litigation which without any fear of contradiction means that the State lacks an effective justice system. In such a situation, I would, rather, go to the extent of saying that if the Judge/the Court does not pronounce a judgment for resolving the legal and factual issues involved in a dispute before it at all, the very purpose of the judicial branch of the State will be frustrated and eroded. If there is no judgment in terms of law, the entire judicial setup shall be rendered farce and illusionary, which obviously shall in turn disturb the equilibrium between the pillars of the State upon which it rests, resulting into serious impairment of the functioning of the State. 6. After having shed some light on the importance of judgments, it is essential to note that in pure civil litigation which emanates from the institution of a suit/lis, a Trial Judge, if there are triable issues for the resolution of which the evidence is required, (note: subject to delinquency of the parties and the consequences for not producing the evidence thereof) (the court) after recording of the evidence, is supposed to pronounce the judgment per Order 20 Rule 1(2), which reads as:- “the Court shall, after the case has been heard, pronounce judgment in open court, either at once or on some future day not exceeding thirty days, which due notice shall be given to the parties or their advocates”. The judgment thus has to be given by the Trial Court within the prescribed period of 30 days, C.As.1646 & 2000 of 2006 & C.P.782-K of 2009 -: 9 :- after the hearing of the case has been concluded. It may be relevant to mention here that with the commencement of the trial in a civil lis, the hearing of the case also starts. And with the conclusion of the trial, the hearing also concludes. The conclusion of the trial or the hearing means that the parties have concluded and completed their evidence. There is no specific provision in the CPC which confers the right upon the parties to make oral arguments before the trial Court, but per convention, the oral submissions of the parties are also heard, which exercise however, must be concluded within 30 days time from the conclusion of the trial, as prescribed by law. If the parties, despite the opportunity granted by the court to make oral submissions, do not avail the same, the court is not bound to wait indefinitely for them and keep on adjourning the matter. This is highly deprecated and should be discouraged, rather the Court should pronounce the judgment without their arguments and this (such judgment) shall not be in violation of the rule of hearing. In my view, the expression “not exceeding thirty days” makes it mandatory for the Trial Court to render its judgment within the prescribed time period. If the same is not done, without a sufficient cause i.e. a cause beyond the control of the Judge, the judgment is impaired in value if not invalid and disciplinary action can be taken against a Judge who is found habitual in delaying his judgments beyond that period, obviously following proper legal steps for such action and in any case at least this vice of the judge must adversely reflect in his ACR’s. However, in the case(s) of appeal against the judgment and decree of the Trial Court, the provisions relevant in the context of judgment are Order 41 Rule 30, CPC, which read as follows:- “The Appellate Court after hearing the parties or their pleaders and referring to any part of the proceedings whether on appeal C.As.1646 & 2000 of 2006 & C.P.782-K of 2009 -: 10 :- or in the Court from whose decree the appeal is preferred to which reference maybe considered necessary, shall pronounce judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders.” From a reading of the above, it is conspicuous that the appellate Court after hearing (note: obviously the hearing means oral arguments) the parties or their pleaders, as the case may be, shall pronounce the judgment at once or on some future day. This future day by no stretch of legal interpretation or on the settled rules and norms of justice can be construed to mean an indefinite period. Rather the rule of reasonableness of time required for the performance of a judicial act in the normal and ordinary course necessary for doing justice should be attracted and pressed into service and read into it. If the first appeal against the decree or order (subject to the pecuniary jurisdiction) is being heard by the District Judge (Additional District Judges included), and it is only the oral summations which are being addressed by the parties/pleaders and heard by the court and no fresh evidence is being recorded (subject to additional evidence as discussed in Order 41 Rule 27 CPC), as the long exercise of a trial is now over; the record is complete; the matter is ripe in all respects for a decision, and the Judge is only required to render the judgment after hearing the summations, thus he has to do the same within reasonable time. This reasonable time, to my candid consideration, should not be more than 45 days. I am enlarging the margin of 15 days (i.e. 30 days + 15 days) because the same Judges also act as Sessions Judges and have to conduct session trials and render decisions in criminal matters and other judicial work also, thus given them the margin of other assignments the noted time is most reasonable and quite sufficient for the appellate court (District Judges) to compose the judgment. This rule and adherence to time, C.As.1646 & 2000 of 2006 & C.P.782-K of 2009 -: 11 :- should equally apply to the judgments in relation to the revisional as also review jurisdiction of these court(s) or where the court(s) is exercising any other special jurisdiction in cases of civil nature before it. If the judgments are not announced within such reasonable time as stated above, same consequences should follow which are prescribed for the trial court Judges in respect of action(s) proposed against them and the impairment of the judgment(s). I find it expedient to mention here that this rule should also extend to all the special courts (forums), tribunals either constituted under the Federal or the Provincial laws and set up which are presided over by the serving or retired judges of the subordinate judiciary and even to those forums which are presided over by the ex-judges of the High Courts (note: however if some time has been fixed by the law for the disposal of any matter before the special forum, such law should take precedence over this rule of reasonableness of time set out in this opinion). It also requires mention here that in quite a large number of cases it has been experienced that the cases are adjourned for the arguments for umpteen, indefinitely numerous occasions, therefore to curb this menace the Judges of the District Judiciary and the special forum throughout the country while pronouncing their judgments should record a note at the end/bottom thereof, as to how many times the case was listed for hearing of the arguments and was adjourned so that the High Courts which have supervisory authority over the said Judiciary must stay abreast about the performance of the Judges; the causes for the delay and should take measures and the steps to rectify the causes and the reasons in this behalf. Moreover this Court as the apex Court of the country and being the paterfamilias must also know what is the state of affair in the Judiciary at the lower ebb and the manner in which the cases are being dealt with and conducted at the trial and appellate/revisional stage. The special courts and the forums should also made such endorsements at their judgments C.As.1646 & 2000 of 2006 & C.P.782-K of 2009 -: 12 :- too. No lethargy or casual attitude is tolerable and the times have come to take appropriate stern and positive actions for speedy justice, rather simple rhetorics. 7. I shall now turn to the hearing of the first and/or second appeals by the High Court(s), and the hearing of the cases before it in its revisional and constitutional jurisdiction. As the first appeals against decrees and mostly the constitutional cases and ICAs are heard by a Division Bench(s) of the High Courts, so as to enable the two Judges to deliberate, confabulate and compose the judgment(s), or record dissent and/or exchange draft judgments, the reasonable time for the pronouncement of judgments should be 90 days. This time period (90 days) shall also be reasonable time for the High Courts, for the reason that Article 201 of the Constitution of the Islamic Republic of Pakistan, 1973 mandates “Subject to Article 189, any decision of a High Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all courts subordinate to it”. Thus for proper enunciation of law, considerable research, brooding and pondering may be required. 90 days time in view of said Article should, therefore, also be good and adequate for the composition of the judgments by the High Court(s) in the above matters and also in first appeal against order or second appeals, and in the cases before it in its revisional or review jurisdiction, or any of the special jurisdictions of the High Court(s) (note: subject to the principle if the law has fixed a time for the conclusion of the proceedings and pronouncement of judgment under any special law, this has to take precedence over the 90 days) If the Judges cannot compose and deliver the judgments within the above (reasonable) time, then they for sufficient reasons, to be recorded (by them) should set out the case for re-hearing. However, because of the high status of the judges of the High Courts, it is not expected that the learned Judges shall fix the matters for rehearing in routine just to cover up the C.As.1646 & 2000 of 2006 & C.P.782-K of 2009 -: 13 :- lapse in composing the judgment within 90 days, rather I am sure that it shall definitely be for genuine reasons, reflected in the order of rehearing as to why the judgment could not be written and pronounced. However, pronouncement of judgment by the High Court after a lapse of time period of 90 days if the matter for any reason is not put for any rehearing per se shall not be invalid, though it may be frowned upon. But again it does not mean that learned High Court has indefinite time to pronounce the judgment after hearing of the matter. In my opinion, the maximum time within which the judgment should come is 120 days. Otherwise the judgment shall stand weakened in quality and efficiency, if not invalid altogether and therefore when challenged before this Court, the Court shall decide whether it should sustain or set aside on the simple and short ground of inordinate delay. 8. Now coming to the judgments to be rendered by the apex Court of the country. The cases/matters by this Court are heard in benches. Usual cases are heard by a three members’ bench, though two members’ benches also hear the matters. The rule of 90 days should also ordinarily extend to those (cases) heard by two member benches of this Court and if the matter is not decided within this time, the case should be fixed for rehearing. This is what I would do for myself. But as the cases are heard by the larger Bench particularly a Bench of three and above, the rule of 90 days should not be attracted because this Court, being the apex Court of the country has to enunciate law on very important legal and constitutional propositions, which law is binding on all the courts and other organs of the State (see Article 189). Therefore for laying down the LAW, a lot of effort, research, deliberations and confabulations are required. This is the final court of the country which is saddled with the duty of laying down the correct law therefore more responsibility is cast on C.As.1646 & 2000 of 2006 & C.P.782-K of 2009 -: 14 :- the Court and utmost care is required to pursue the law which is free from any flaw(s). Thus the judgments sometimes after being drafted are shelved for a while for further thinking, rethinking about its implication, the effect and impact on the State, society, culture, pending cases and the system of governance, the rights of the citizens etc. This Court settles the jurisprudence of the country and the development and true interpretation of law. Numbers of drafts are therefore prepared for discussion and in put; different opinions are to be recorded in the same judgment on different points of law by the Judges of the Bench; there are dissents recorded. It is, thus, left to the Judge(s) of this Court to decide for themselves as to what minimum time frame shall be needed for composing and pronouncing the judgment as the judges of the superior courts cannot be said to be unaware or unmindful about their responsibility of providing speedy justice and the expediency of dispensation of the justice. And of course the mandate of Article X of the Judges Code of Conduct, which they have sworn (vide their oath) to follow and abide by in letter and spirit. And the said Article stipulates:- “In this judicial work a Judge shall take all steps to decide cases within the shortest time, controlling effectively efforts made to prevent early disposal of cases and make every endeavor to minimize suffering of litigants by deciding cases expeditiously through proper written judgments. A Judge who is unmindful or indifferent towards this aspect of his duty is not faithful to his work, which is a grave fault.” 9. Furthermore, in the context of the judgments in general and in particular to be delivered by the superior courts, it is my firm and well thought-out view that if there is an inordinate delay in pronouncement of judgment after hearing of the matter, especially on account of lapse of considerable and reasonable time, such as six months and beyond, the C.As.1646 & 2000 of 2006 & C.P.782-K of 2009 -: 15 :- Judges shall not be in a position to exactly recall and record with precision and exactitude as to what propositions of law and facts were argued before them. This shall have reflection upon the rule of audi alteram partem, which is a fundamental and salutary rule of justice and postulates that if someone has been denied appropriate opportunity of hearing in a case, any verdict/decision given against such person/party shall not be laudable. This rule is quite known and established in our jurisprudence (note: I do not find it expedient to unnecessarily reiterate the importance of this rule here) and the legal consequences qua the violation thereof by a Court are also well established. Besides, it may be mentioned here, that hearing means a meaningful, purposeful and effective hearing which enables a Judge to understand the legal and factual proposition involved in the matter as opposed to an illusionary and cursory hearing conducted barely as a formality and to bring on record mere compliance of the rule of hearing. If effective hearing is not provided, it shall tantamount to non-hearing of the party concerned and the legal consequences of non-hearing of parties shall follow. 10. Be that as it may, in quite a number of cases where judgments have been withheld by the Courts (by any Court) for a considerable period of time, it has been frowned and disapproved, for example in the case reported as Muhammad Ovais and another Versus Federation of Pakistan through Ministry of Works and Housing Pakistan, Islamabad and others (2007 SCMR 1587) it has been ordained:- “6. With regard to the writing of judgment, the directions can be found under Order XX, rule 1(2) of the C.P.C. It lays down imperatively that, after the case has been heard, the Court shall pronounce judgment in the open Court either at once or on some future date not exceeding thirty days, for which due notice shall be given to the parties or their Advocates. The Code applies to the High Court as well but if its application is relaxed in the exercise of constitutional jurisdiction, one can conclude that the judgment be pronounced on some future date, to be reasonably calculated. C.As.1646 & 2000 of 2006 & C.P.782-K of 2009 -: 16 :- Though, strictly speaking, departure from thirty days is not justified otherwise. Abdul Aziz, C.J. in Pathana v. Mst. Khandal PLD 1952 BJ 38 had observed that a judgment, with reference to Order XX, rule 1, C.P.C., delivered after five months of hearing arguments is tantamount to delivering judgment without hearing the parties. A Full Bench of this Court in Syed Iftikhar-ud-Din Haider Gardezi v. Central Bank of India Limited 1996 SCMR 669 has maintained that the term "future date" cannot be determined by a Court unreasonably. This was with reference to Order XLI, rule 30, C.P.C. In the case aforesaid, a judgment pronounced eight months after hearing of arguments was held to be unreasonably delayed and the case was remanded to the High Court for rehearing and re-deciding the matter. We have given our anxious consideration to the law involved and also the principle of propriety and hold that when the delay in pronouncement of judgment is not expected to be unreasonable either in the exercise of original or in appellate jurisdiction, why it should be so allowed and interpreted in case of constitutional jurisdiction, especially, when Code of Civil Procedure is held applicable. 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8. Even if, we go to the condition of prejudice caused to a party by delayed pronouncement of judgment, though not provided in law, yet the decision would depend upon the facts and circumstances of each case. It is only adhered to for the sake of argument, whereas, the verdict in 1996 SCMR 669 is to prevail any way. The unreasonable delay of ten months in the instant case in pronouncement of judgment by the learned High Court has caused prejudice as well. In the lengthy arguments addressed before us on merits, we were referred to a bulk of documentary evidence going to the very route of the case which was never found mentioned in the impugned judgment of the High Court. This omission seems to be caused only and only due to the delay of ten months in question.” Almost to the same is the ratio of the law laid down in the cases reported as Syed Iftikhar-ud-Din Haidar Hardezi and 9 others Versus Central Bank of India Ltd. Lahore and 2 others (1996 SCMR 669), Muhammad Latif Versus Member, Board of Revenue/Chief Settlement Commissioner, Punjab, Lahore and 9 others (2003 CLC 1064) and Walayat Hussain C.As.1646 & 2000 of 2006 & C.P.782-K of 2009 -: 17 :- Versus Muhammd Hanif (1989 MLD 1012). Similar jurisprudence can also be found in the Indian Jurisdiction on the subject, where in the case reported as R.C. Sharma Versus Union of India and others (AIR 1976 SC 2037), it has been held as under:- “The Civil Procedure Code does not provide a time limit for the period between the hearing of arguments and the delivery of a judgment. Nevertheless, we think that an unreasonable delay between hearing of arguments and delivery of a judgment, unless explained by exceptional or extraordinary circumstances is highly undesirable even when written arguments are submitted. It is not unlikely that some points which the litigant considers important may have escaped notice. But, what is more important is that litigants must have complete confidence in the results of litigation. This confidence tends to be shaken if there is excessive delay between hearing of arguments and delivery of judgments. Justice, as we have often observed, must not only be done but must manifestly appear to be done.” 11. In the light of all that has been discussed and mentioned above, it is clear that unlike the cases before the Trial Court, the cases for which no specific period has been fixed by the statutory law for pronouncing the judgment, it is required of the learned Judges concerned of the District Judiciary that they should pronounce the judgments within the time enunciated by this opinion. And it is expected of the learned Judges of the High Courts to give respect to what time has been laid down herein. Otherwise, any judgment rendered may be questioned as not being meaningful, purposive and rather illusionary. Such a verdict shall neither fit in the concept, object and purpose of a judgment nor shall it meet the rule of proper dispensation of justice. But if any matter comes before this Court in which a judgment of the learned High Court is attacked as traveling beyond the period of six months, despite my holding it to be weakened in quality etc., but it shall not be invalid altogether, still it shall C.As.1646 & 2000 of 2006 & C.P.782-K of 2009 -: 18 :- be open to this Court to examine if for some reason an exception can be taken to this opinion and if so such judgment may be upheld. However having examined the judgment impugned in this case which has been pronounced after a period of one year and three months, I find it to be against the rule of natural justice and it fundamentally does not meet with the concept of proper judicial dispensation, thus the same cannot be sustained and in such a situation the rule of vitiation of a judicial decision can be aptly resorted to; and is, therefore, set aside and the matter is remanded to the learned High Court for decision afresh. These appeals stand allowed in the terms noted above. CIVIL PETITION NO.782-K/2009: 12. In this case, the impugned judgment has not been passed through independent application of mind, rather the Court has decided the matter simply on the basis of the judgments pronounced in the noted appeals, which have been set aside, thus the impugned judgment in this case also cannot be sustained. Resultantly this petition is converted into appeal and allowed, the impugned judgment is set aside and the matter is remanded to the learned High Court for decision afresh in accordance with law. JUDGE JUDGE Islamabad, the JUDGE 21st April, 2015 Approved For Reporting Ghulam Raza/*

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Qazi Muhammad Amin Ahmed Civil Appeal No.1664 of 2014 (Against judgment dated 22.09.2014 passed by the Peshawar High Court Abbottabad Bench in C.R. No.225 of 2008) Mst. Kalsoom Begum …Appellant(s) Versus Rizwan Shah & others ….Respondent(s) For the Appellant(s): Barrister Umar Aslam, ASC Syed Rifaqat Hussain Shah, AOR For the Respondent(s): Mr. Manzoor Hussain, ASC Date of hearing: 10.09.2020. ORDER Qazi Muhammad Amin Ahmed, J.-Appellant/plaintiff, claiming to be a co-sharer in contiguity with concomitant rights, successfully pre-empted sale of land measuring 1-Kanal 3-Marla bearing Khasra No.2459/6027 in Khata No.3568/6997, situating within the revenue estate of Mansehra, effected through mutation No.53825 dated 27.1.2003, vide judgment/decree dated 30-11-2006, upheld by the learned Appellate Court vide judgment/decree dated 16.10.2008. The respondent/ vendee- defendant filed Civil Revision No.225 of 2008, a learned Judge-in-Chamber issued pre-admission notice on 1.12.2008 to examine improvements on the suit land, claimed by the vendee-defendant while affirming appellant’s superior right as well as performance of Talab-e-Muwathibat being in accordance with law. Dissatisfied with the finding of the learned Judge on the aforesaid issues, the vendee-defendants, during the pendency of their civil revision assailed the order ibid through Civil Petition No.93 of 2009, however, it was dismissed as withdrawn on 6.8.2008 with a direction to the High Court to afford opportunity of hearing to the both sides. It was in this backdrop that the learned High Court set aside the judgments and decrees of the Courts below vide judgment dated 2.4.2012 Civil Appeal No.1664 of 2014 2 and remanded the case to the trial Court for decision afresh, assailed this time by the appellant through Civil Petition No.1247 of 2012 wherein leave was granted on 13.11.2012 in consequence whereof vide order dated 23.01.2013 the High Court was directed to decide the revision petition on merit by itself, pursuant whereto, the High Court allowed the revision petition and dismissed the suit vide judgment dated 22.09.2014, vires whereof, are being assailed through this direct appeal, inter alia, on the grounds that the High Court ran into error to non-suit the appellant by holding that she lacked superior right of being a co-sharer in the estate as well as her failure to satisfactorily perform Talabs in accordance with law. Contrarily, the learned counsel for the respondents has defended the impugned judgment by arguing that after a long drawn legal battle the learned High Court had drawn conclusions just and fair duly supported by evidence brought on the record. The learned counsel, emphatically, pointed out appellant’s failure to produce the postman who had statedly delivered the notices to argue that the omission by itself was fatal to the suit; he has also highlighted “discrepancies” in the statements of witnesses to prove the Talabs with a particular reference to absence of their names in the plaint. The appellant was not a co-sharer in the estate at the relevant time, concluded the learned counsel. 2. Heard. Record perused. 3. Appellant’s superior right as a co-sharer in the estate is the foundation stone of her claim; factum of contiguity and easement are inseparably consequent thereupon; she has constructed her plea on the strength of a court decree dated 4.5.1976, holding field till date, a common ground, on the basis whereof, mutation was sanctioned as late as on 15.1.2004, almost one year after the impugned sale as confirmed by Ghulam Raza, Patwari Halqa (PW-2) as well as mutation (Ex.PW-2/R-I); belated mutation weighed with the High Court to exclude the appellant from the estate. It is by now well settled that a mutation by itself does not create or destroy an existing right; it is merely reflection of revenue record, authenticity/validity whereof is to be essentially ascertained in the underlying transaction, a view held by this Court throughout in cases reported as Muhammad Lehrasab Khan Vs. Mst. Aqeel-un-Nisa and 5 others (2001 SCMR 338), Saadat Pervaz Sayan Vs. Chief Secretary, Government of Punjab, Lahore and 3 others (2003 PLC (C.S.) 1277), Muhammad Munir Vs. Civil Appeal No.1664 of 2014 3 Muhammad Saleem and others (2004 SCMR 1530), Arshad Khan Vs. Mst. Resham Jan and others (2005 SCMR 1859), Mst. Janntan and others Vs. Mst. Taggi through LRs and others (PLD 2006 S.C. 322), Muhammad Ishaq Vs. Muhammad Shafiq and 9 others (2007 SCMR 1773), Haji Muhammad Anwar Vs. Muhammad Ahmed and others (2007 SCMR 1961), Abdul Rasheed through LRs and others Vs. Manzoor Ahmad and others (PLD 2007 SC 287), Mst. Suban Vs. Allah Ditta and others (2007 SCMR 635) and Muhammad Yaqoob Vs. Mst. Sardaran Bibi and others (PLD 2020 S.C. 338). The Court decree though incorporated after inordinate delay, nonetheless, had conferred the status of a co-sharer upon the appellant way back in the year 1976, additionally establishing contiguity with the suit land as well as easement rights appertaining thereto. Absence of the postman from witness-box who had actually delivered notices (Ex.PW-3/3-5) along with relevant receipts (Ex.PW-1/1-3) does not violate the law declared by this Court requiring official attendance to establish dispatch of notice of Talab-i- Ishhad as Muhammad Yousaf, Clerk GPO Mansehra appeared as PW-1 to bring on record the relevant details and thereby successfully established dispatch of the required notice to the respondents. It has been held in the case of Liaqat Ali and others Vs. Safdar Khan (2020 SCMR 863) that “we are also not impressed by the argument that the postman who had actually delivered the notice ought to have appeared in person instead of Fazal Majeed , Registration Clerk GPO and Zahid Ahmed, Postman, who respectively appeared as PW-2 and PW-3. Plaintiff by producing these official witnesses along with relevant receipts and acknowledgement due aptly discharged the onus to establish dispatch of notice. There is perpetual continuity in State business, sustained by officials in succession”. The appellant discharged the onus to prove dispatch of notice by producing official witnesses from the concerned post office as the mode adopted by her is in accord with the provisions of section 26 of the West Pakistan General Clauses Act, (Act VI), 1956, reproduced below: “26. Meaning of service by post.—Where any Provincial Act, authorizes or requires any document to be served by post, whether the expression “serve” or either of the expressions “give” or “send” or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the documents, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.” Civil Appeal No.1664 of 2014 4 Adverting to the statements of the witnesses produced by the appellant to establish Talab-i-Muwathibat and Talab-i-Ishhad, held by the learned High Court as discrepant, upon our analysis, we have not been able to persuade ourselves to subscribe to the view taken by the learned High Court as the alleged contradiction in their depositions may not be viewed as major or significant. The appellant acquired knowledge of the impugned sale soon after her return to Pakistan after performance of Hajj. Some variations in the statements of witnesses, blown out of proportion, are merely narrative variations that inevitably occur in honest human discourse after flux of time; these do not destroy the contextual integrity of the declarations so as to defeat a valuable statutory right, vesting in the appellant. The appeal is allowed; impugned judgment of the High Court is set aside and the judgments and decrees of the trial Court and that of the Appellate Court are restored. No order as to costs. Judge Judge Islamabad, the 10th September, 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 Qazi Muhammad Amin Ahmed Mr. Justice Sayyed Mazahar Ali Akbar Naqvi CIVIL APPEAL NO.166 OF 2021 Ali Asjad Malhi …Appellant(s) Versus Ms. Syeda Nosheen Iftikhar and others …Respondent(s) For the Appellant(s): Mr. M. Shahzad Shoukat, ASC Mian Abbas Ahmed, ASC Mr. M. Sharif Janjua, AOR For Respondent No.1: In person. For Respondent No.7: Mr. Ghulam Mustafa Kandwal, ASC For the E.C.P.: Mian Abdul Rauf, ASC Mr. M. Arshad D.G. E.C.P. Date of hearing: 16.03.2021. ORDER The impugned judgment of the Election Commission of Pakistan (“ECP”) dated 08.03.2021, which was preceded by a short order dated 25.02.2021, has been read to the Court. The relevant facts of the present lis are that on 20.02.2021, a day after the polling in the bye-election of NA-75, Sialkot-IV had concluded, respondent No. 1 (a contesting candidate) complained Civil Appeal No.166 of 2021 2 to the Returning Officer and the ECP about irregularities committed at twenty polling stations. Thereafter, on completion of his preliminary inquiry, the Returning Officer vide report dated 21.02.2021 accepted the claim of respondent No. 1 only to the extent of fourteen polling stations. However, after hearing the parties, ECP in its impugned short order dated 25.02.2021 declared the whole election of NA-75, Sialkot-IV null and void. 2. It is accepted by all sides appearing in the matter that two persons were killed at one polling station, roughly forty polling stations were affected by aerial firing and Presiding Officers of twenty polling stations went missing because of which they could not hand over the results to the Returning Officer in time. More importantly, the underlying tenor of the impugned judgment is that the police were silent spectators who did not intervene to check the acts of intimidation, harassment and violence that took place outside the polling stations on election day. In fact, the impugned judgment has observed that neither the Inspector General of Police, Punjab nor the Chief Secretary, Punjab responded to the ECP’s request on polling day for controlling the law and order situation in Daska. Instead, only the Federal Government reacted by providing protection through Rangers for the polling staff, polling stations and polling material. 3. There is no cavil with the proposition that ECP is empowered under Article 218(3) of the Constitution read with Section 9 of the Elections Act, 2017 (“Act”) to ensure that elections are conducted honestly, justly, fairly and lawfully in such a manner that coercion, intimidation and pressure tactics Civil Appeal No.166 of 2021 3 are stymied. However, the question before us is: what standard of proof, quantum of evidence, scale and severity of violations of law will warrant a re-poll in the entire constituency. As it presently stands, Section 9 ibid operates in a very limited span of sixty days following the publication of the result of an election. The jurisdiction of ECP under the said provision partakes of executive and quasi-judicial powers that may be exercised promptly to cure any irregularity in the conduct of an election. Therefore, the benchmarks laid down by the law for the Election Tribunal to annul an election and order a re-poll may not strictly apply to the ECP under the said Section without suitable modification. In such circumstances we would like to examine whether the impugned action of the ECP, namely, its allegedly excessive response to the prevailing situation in Daska was within its jurisdictional parameters. The learned counsel for the parties have so far not analyzed the extensive material on record to relate the same to the powers and jurisdiction of the ECP under the Constitution and the Act. In particular, the following questions have not been addressed: a. What transgressions on the polling day could constitute grave illegalities or violations calling for a fresh rather than a partial re-poll? b. In what situations would non-pervasiveness of the illegalities or violations committed on polling day still attract the same result? 4. To assist the Court in answering these questions, we would appreciate if ECP could present a map of the constituency labelling the polling stations where specified wrongs were Civil Appeal No.166 of 2021 4 committed along with a chart explaining the said labels. To come up for arguments on the foregoing points on 19.03.2021. Judge Judge Judge Islamabad, the 16th March, 2021 Azmat/- Meher

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE IQBAL HAMEEDUR RAHMAN MR. JUSTICE MAQBOOL BAQAR CIVIL APPEAL NO.167-Q OF 2005 (On appeal against the judgment dated 14.12.2004 of the High Court of Baluchistan, Quetta in RFA No.58 of 1999) M/s Summit Bank Limited through its Manager, M.A.Jinnah Road Branch, Quetta … Appellant Versus Muhammad Alam & another … Respondents For the appellant: Hadi Shakeel Ahmed, ASC. For the respondents: Syed Ayaz Zahoor, ASC. Date of hearing: 07.4.2015 JUDGMENT MAQBOOL BAQAR, J.- Through the instant appeal, the appellant-bank has impugned judgment dated 14.12.2004 of a learned Single Judge of the High Court of Balochsitan, whereby the respondents’ appeal was allowed and the judgment dated 25.9.1999, of the learned Additional District Judge-II, Quetta, dismissing the respondents’ suit against the appellant-bank, was set-aside. 2. The relevant facts of the case, in brief, are that on 25.3.1992. Qasim Khan, the father of the respondents, opened an account, bearing No.251, with the appellant-bank in his name. However, in May 1992 he allowed respondent No.2 and thereafter also allowed respondent No.1 to operate the said account. Qasim CA 167-Q/05 2 Khan passed away on 28.6.1996 whereafter at the request of the respondents the title of the account was changed to “M/s Qasim and Company”. 3. A contracting firm, namely, M/s Tameer-e-Nau Engineers and Contractors (hereinafter referred to as “Tameer-e- Nau”), owned by one Mir Afzal was awarded a civil contract by Lahore Development Authority (LDA). On 01.11.1994, the appellant-bank furnished a performance guarantee in respect of the said project on behalf of Tameer-e-Nau. The said performance guarantee was, sometime after 04.9.1995, enforced and encashed by LDA. For the purposes of said payment a Running Finance facility was granted in favour of Tameer-e-Nau and the amount was thus debited in the running finance account of Tameer-e-Nau. As per the relevant sanction advice (page 105 of the paper book), the facility was secured by way of hypothecation of stock of construction material worth Rs.4.000 millions and also through equitable mortgage of a property bearing No.7-A, Model Town, Lahore, measuring 600 square yards, valuing Rs.5.215 millions. However, according to the appellant-bank, the re-payment of the facility was also guaranteed by Qasim Khan, the deceased father of the respondents, who according to the appellant-bank, executed a guarantee in that regard. According to the respondents, huge amounts were transacted by them through their afore-noted account bearing No.251. It was claimed that on 21.2.1998 an amount of Rs.55.50 millions was remitted by them through telegraphic transfer to the said account. However, subsequently some cheques including cheques dated 24.2.1998 and 17.3.1998 drawn by them against the said account were dis-honoured, and CA 167-Q/05 3 upon inquiry they were informed by the appellant-bank that sufficient balance was not available in the respondents’ account as an amount of Rs.38,88,721.65 has been deducted by the appellant-bank towards liquidation of the liability of Qasim Khan (late) therefrom under the aforesaid guarantee. 4. The plaintiffs/respondents through their counsel caused a legal notice to be served on the appellant-bank for refund of the amount but to no avail. The respondents, thus, filed the recovery suit. 5. Mr.Shakeel Ahmed, learned counsel for the appellant- bank submitted that in terms of section 7(4) of the Banking Companies (Recovery of Loans, Advances, Credit and Finances) Act XV of 1997 (hereinafter referred to as ‘the Act’), read with section 9 of the Act, it was only the Banking Court constituted under the Act, which had the jurisdiction to entertain the respondents’ suit and to proceed therewith, as the question involved therein was of the validity, extent, and encashment of the guarantee furnished by the late father of the respondents to secure re-payment of a finance facility within the meaning of section 9 of the Act and therefore, the learned High Court ought to have dismissed the respondents’ appeal. He submitted that not only the account bearing No.251 was established and maintained by Qasim Khan (late) but even after his death, though the present respondents changed the title of the account but such fresh title being “M/s Qasim and Company” also contained the name of the deceased and therefore, the appellant-bank was fully justified in exercising its lawful right of lien over the said account as envisaged by section 171 of the Contract Act, and has thus rightly CA 167-Q/05 4 appropriated the amount of the outstanding liability of the deceased from the said account. 6. On the other hand, Mr.Ayaz Zahoor, the learned counsel for the respondents submitted that after the death of Qasim Khan and at the request of the respondents, the title of the account was changed from “Qasim Khan” to “M/s Qasim and Company”. He submitted that such account was being maintained and operated exclusively by the respondents. He further submitted that undisputedly heavy amounts were transacted in and out of the said account since after the death of Qasim Khan in June 1996 and upto 18.3.1998, when an amount of Rs.38,88,721.65 was debited/ appropriated by the appellant-bank purportedly towards the alleged liability of the deceased. Mr. Zahoor further submitted that admittedly on 21.2.1998 a sum of Rs.55.50 millions was remitted by the respondents from Islamabad to the aforesaid account. 7. The learned counsel further submitted that neither the appellant-bank has had any lien over the amount lying in the aforesaid account nor could they exercise any such lien under section 171 of the Contract Act. He submitted that at the relevant time neither the account belonged to or was in the name of Qasim Khan (late), nor any amount lying in credit therein was deposited by Qasim Khan. However, the appellant-bank without any notice to the respondents, and without establishing their claim against the Tameer-e-Nau, the principal debtor and or even against the deceased, illegally and unlawfully mis-appropriated the amount from the respondents’ account under the grab of setting-off. CA 167-Q/05 5 8. The learned counsel for the respondents further submitted that neither the respondents who hold and operate the said account are/were customers of the appellant-bank in relation to the alleged transaction relating to Tameer-e-Nau, nor have they executed any document in relation thereto and that no lien was ever marked over the subject account and thus, there was no question of the appellant-bank exercising its lien over the said account. 9. He further submitted that it is a settled principle of law that if any pecuniary obligation arises out of a contract by the deceased such would only bound the legal representatives to the extent of the estate left by the deceased and not otherwise. Mr. Zahoor further submitted that as can be seen from the sanction advice in relation to the Running finance facility in favour of Tameer-e-Nau, the said facility was secured by way of hypothecation and through equitable mortgage of a valuable property. However, neither the appellant-bank established its claim against Tameer-e-Nau nor have they sought enforcement of the such securities from the Court and instead found it convenient to surreptitiously mis-appropriate the respondents’ money lying in trust with them under the garb of liquidation of the purported undetermined liability of their deceased father and, therefore, the respondents rightly invoked the jurisdiction of the Court. 10. The question that arose in this case was/is as to whether the deduction/withdrawal in dispute was lawful or not. The appellant-bank claims to have affected the deduction/ withdrawal by exercising its lien/right to set-off the liability of the CA 167-Q/05 6 deceased towards the appellant-bank. The concept of banker’s lien/right to set-off as embodied under section 171 of the Contract Act has been aptly explained in the case of Punjab National Bank Ltd. v. Arura Mal Durga Das (AIR 1960 Punjab 632) as under:- “(14). The rule of English Law that the Bank has a lien or more appropriately, a right to set-off against all monies of his customers in his hands has been accepted as the rule in India. According to this rule when the monies are held by the Bank in one account and the depositor owes the Bank on another account, the Banker by virtue of his lien has a charge on all monies of the depositor in his hands and is at liberty to transfer the monies to whatever account, the banker may like with a view to set-off or liquidate the debts….” It hardly need any emphasis to understand that a banker can exercise his right of lien or his right to set-off the liability of his customer against the securities and monies in his hand of that customer only and not of any body else. 11. To elaborate the above mutuality, the judgment proceeds as follows:- “15. In order to create Banker’s lien on several accounts it is necessary that they must belong to the payer in one and in the same capacity. Where the person has two accounts, one a trustee account and another private account at a bank, deposits in the two accounts cannot be set-off, the one against the other…. 16. Bankers have a right to combine one or more accounts of the same customer. But it cannot combine the account belonging to another or to himself along with another account which is the joint account with another…... 17. Similarly, the Banks have no lien on the deposit of a partner, on his separate account, for a balance due to the Bank from the firm. Therefore, the banker is CA 167-Q/05 7 entitled to combine all accounts kept in the same right by the customer. It does not matter whether the accounts are current or deposit or whether they are in the same or different branches. ---- It is essence to the validity of a banker’s lien, that there should be a mutuality of claim between the Bank and the depositor. In order that it should be permissible to set- off one demand against another both must mutually exist between the same parties.” 12. Furthermore, as rightly commented by Sheldon and Fidler’s in their book on Practice and Law of Banking (Eleventh Edition, page 31) “The banker may exercise the right of set-off only when the money owned to him is a sum certain, which is due”. 13. Here it may be relevant to note that even under the law which provides for recovery through coercive process such as land revenue, determination of the amount due is an essential pre- requisite. The bank cannot be conferred with the judicial powers for determination of the amount due against its customer/borrower. The right/power to set-off would be available only where the amount claimed was due and is certain and determined by a competent judicial forum. 14. However, in the present case, although the subject account was established by Qasim Khan in his name, however, undisputedly, he authorized the respondents to operate the account. After the death of Qasim Khan on 28.6.1996, the title of the account was, at the request of the respondents, changed to “M/s Qasim and Company”. Since after the death of Qasim Khan and upto 18.3.1998, when the appropriation/adjustment in question was made by the appellant-bank, heavy amounts were transacted in and out of the said account. Admittedly, on CA 167-Q/05 8 21.2.1998 an amount of Rs.55.50 millions was remitted by the respondents from Islamabad to the said account. The learned counsel for the appellant has not shown to us that any amount lying in the subject account, in fact belonged to the deceased and thus the very first pre-requisite for creation of a right to set-off did not exist in the present case. 15. Even otherwise, neither the purported liability of the deceased has been proved nor has the same been quantified. The appellant-bank has not even filed any recovery suit, either against Tameer-e-Nau, or even against the deceased. Although the finance was primarily secured by way of mortgage over a valuable property and through hypothecation of stock valuing Rs.4 Millions, but no suit for enforcement of the securities was filed by the appellant- bank. In the circumstances no right to set-off was available to the appellant-bank. 16. It is a well settled principle of law that a pecuniary obligation undertaken by a deceased promisor would be binding on his legal representatives to the extent of the estate of the deceased promisor in their hand. This principle has been statutorily recognized in section 50 of the Civil Procedure Code which lays down the extent to which a decree passed against a judgment-debtor who dies before the decree has been fully satisfied, against his legal representative. Whereas, in the present case, as noted, neither has there been any adjudication of appellant’s claim against Tameer-e-Nau and/or Mir Afzal, the principle debtor, or against the deceased, nor has it been judicially determined as to whether the respondents h ave inherited any property from the deceased, there was/is thus no question of the CA 167-Q/05 9 appellant seeking to right-off the alleged liability and/or seeking any recovery from the respondents without adjudication of the above referred aspects of the matter. 17. As regards the appellant’s contention that only the Banking Court, established under the Act had jurisdiction in the matter, it may be noted that, as is now clear from the above discussion, neither there was any question pertaining to “finance” as defined by Section 9 of the Act, nor the question as to whether the respondents were “customers” in the context of the Act involved in the matter and no documents were executed by the respondent securing re-payment of the alleged liability. The suit for recovery was filed by the respondents for the amount that was deducted out of their monies lying in their account illegally and unauthorizedly and thus the Banking Court had no jurisdiction in the matter as the same was constituted to adjudicate upon the matter pertaining to “finance” between bank and its customer, we therefore, did not find any jurisdictional error in the matter. 18. It was in view of the foregoing that we dismissed the above appeal. Judge Judge Judge Islamabad the 7th April 2015 (Aamir Sh.) ‘NOT APPROVED FOR REPORTING’

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE JAVED IQBAL MR. JUSTICE JAWWAD S. KHAWAJA MR. JUSTICE ANWAR ZAHEER JAMALI Civil Appeal No.16 of 2010 (On appeal from the judgment dated 29.10.2009 of the Peshawar High Court, Abbottabad Bench passed in WP No.429/2009) Waqar Ali & others … Appellants VERSUS The State through Prosecutor/ Advocate General, Peshawar & others … Respondents For the appellants Mr. Tariq Mahmood, Sr. ASC For respondent 1-3: Nemo. For respondent-2: Mr. Gulzarin Kiyani, ASC Date of hearing: 23.11.2010 JUDGMENT Jawwad S. Khawaja, J.- The three appellants namely Waqar Ali, Zulfiqar Ali and Sadaqat Ali who are brothers inter se, impugn the judgment dated 29.10.2009 passed by a learned Division Bench of the Peshawar High Court whereby Writ Petition No.429/09 filed by the appellants was dismissed. For a proper understanding of the grievance of the appellants it is necessary to set out briefly, the relevant facts which have given rise to this appeal by leave of the Court. 2. The appellants, through a registered sale deed dated 8.2.2005 purchased land measuring 150 kanals in khasra No.4729/2042 and Civil Appeal No.16 of 2010 2 4730/2042 situated in mauza Khanpur, Tehsil & District Haripur. The authenticity of the sale deed and the validity of the title acquired by the appellants are not disputed. Respondent No.2 namely Ghulam Basit is owner of land measuring 30 kanals 6 marlas in khasra Nos. 4260/2344,4257/2339,4258/2339,4723/4259/2344/4259/2344 in the same mauza i.e. Khanpur. The title of the respondent Ghulam Basit in the said land is not disputed by the appellants. It is also clear that the land owned by the appellants is in khata No.1039/1421 while the respondent Ghulam Basit owns land in a different khata. These are material circumstances having a bearing on the outcome of this appeal, as will be apparent from the discussion which follows. 3. On 3.5.2008, the aforesaid respondent lodged a complaint under Section 3 of the Illegal Dispossession Act, 2005 against the three appellants and two others namely Zila Council Haripur and the Project Manager, Khanpur Dam. It was alleged therein that the appellants had committed an offence under Section 3 ibid and a prayer was made that they be convicted and sentenced under the said provision of law. The relevant allegations against the appellants can be gathered from paragraphs Nos.3 and 4 of the complaint which, for ease of reference, are reproduced as under:- Civil Appeal No.16 of 2010 3 4. The aforesaid averments in the complaint have special significance and will be considered later. At this stage, however, it is relevant to note that the appellants had purchased land in February 2005. It is also important that even according to the contents of the complaint the area owned by the respondent-complainant was open land without any boundary wall or other markings to identify the extent or the exact metes and bounds of the same. The respondent claims he became aware of the offence but no date or time of the alleged commission of offence has been mentioned in the complaint. The respondent’s knowledge is based on a demarcation report made in May, 2008 on an application to the Tehsildar, Haripur filed by the respondent-complainant on 1.2.2008. The complaint under Section 3 ibid was filed in the trial Court on 3.5.2008. The appellants, on their own, and even before cognizance had been taken, appeared before the trial Court and challenged the maintainability of the complaint. It is not necessary for the present to give an account of certain proceedings which took place on the complaint, before the learned trial Court or in the Peshawar High Court between 3.5.2008 which is the date Civil Appeal No.16 of 2010 4 of filing of the complaint and 15.7.2009 when the learned trial Court took cognizance by observing as under:- “At this juncture, this Court is to see that whether prima facie the matter is cognizable under the Act or not. The other aspects of possession of the respondents and the correctness of the report of the local commissioner are matters of evidence to be thrashed out at proper stage. The complaint is prima facie maintainable.” (emphasis supplied) This order was assailed by the appellants through the afore-noted Writ Petition No.429/09 filed before the Peshawar High Court. It was the case of the appellants that there was no basis for holding that the complaint was maintainable. The writ petition was dismissed vide impugned judgment dated 29.10.2009 on the short ground that the trial Court’s order ‘is not final which could be challenged in constitutional jurisdiction and in this sense the [writ] petition is premature.’ It is in these circumstances that the appellants filed Civil Petition No.2038 of 2009 wherein leave to appeal was granted to consider if the assumption of jurisdiction by the learned trial Court was violative of the Illegal Dispossession Act, 2005 5. We have heard learned counsel for both sides. We have also examined the grounds which prevailed with the learned trial Court while taking cognizance of the matter and the reasons which persuaded the High Court to pass the impugned judgment dated 29.10.2009. Although learned counsel for the appellants adverted at length, to factual controversies between the parties relating to title, possession and similar matters, it is not necessary to adjudicate on such factual aspects because Civil Appeal No.16 of 2010 5 the matter before us is confined to the issue noted in the leave granting order which is in the following terms:- “….. Having heard learned counsel for the appellants at some length, leave is granted to consider whether the assumption of jurisdiction by the learned Additional Sessions Judge in the circumstances alluded to in the petition is violative of the mandate of Illegal Dispossession Act, 2005.” 6. The above issue must be examined, starting with the contents of the complaint itself which highlights a mixed question of law and fact. It is clear from the complaint as already noted, that the area measuring 30 kanals 6 marlas owned by the respondent-complainant was open land without any visible identification of its limits. It also appears evident from the record that when the appellants purchased their property measuring 150 kanals, there was no construction or boundary-wall to identify the same. Even the tatimma khasra number in respect of the said 150 kanals was created subsequent to the purchase made by the appellants. Another important factor markedly obvious from the complaint is that the respondent was aware of certain demarcation and boundary disputes raised by Malik Manzur, another local land-owner, in respect of the area purchased by the appellants. This dispute arose and had been settled well before the filing of the respondent’s complaint. Yet, no demarcation was sought nor was any other action taken by the respondent at the time to get his land demarcated. Between 2005 when the appellants purchased and took possession of their property, and the filing of the application for demarcation on 1.2.2008, the respondent himself appears not to have had any grievance let alone a cause for complaint for trespass or illegal Civil Appeal No.16 of 2010 6 dispossession. Admittedly, as per paragraph 4 of his complaint (reproduced above) the respondent only became aware that the alleged offence under Section 3 supra had been committed by the appellants, upon receiving the demarcation report. These circumstances simplify the controversy before us. 7. The legal question as to whether the trial Court had jurisdiction in the matter can thus be easily decided by referring to the above circumstances and the relevant provisions of the Illegal Dispossession Act, 2005 (hereinafter referred to as the “Act”). Section 3 of the said statute which defines the offence thereunder, is reproduced below for ease of reference:- “3. Prevention of illegal possession of property, etc.--- (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.” (2) Whoever contravenes the provisions of the subsection (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 be compensated in accordance with the provision of section 544-A of the Code.” (emphasis supplied) We may also briefly refer to other provisions of the Act which have relevance in this appeal. Section 4 stipulates that any “contravention of section 3 shall be triable by the Court of Session on a complaint”. It also provides that the offence under the Act shall be non-cognizable. Section 5 empowers the Court to direct the police to make investigation. The scope of these provisions of the Act will be considered during the course of this opinion. Civil Appeal No.16 of 2010 7 8. It is clear from section 3 ibid that in order to constitute an offense thereunder the complaint must disclose the existence of both, an unlawful act (actus reas) and criminal intent (mens rea). In view of the allegations and circumstances considered above, it is apparent that even if it is ultimately established that the appellants are in occupation of an area owned by the respondent-complainant, there is no indication that they also had the necessary criminal intent. On the contrary, the averments in the complaint point in the opposite direction and show at best, that there is a dispute of a purely civil nature between the parties as to the exact location of their respective parcels of land. It is in these circumstances, and with the aforesaid background in mind that learned counsel for the respondent-complainant was asked to state if an inadvertent encroachment would constitute an offence under Section 3 of the Act. He replied in the affirmative. We are afraid his response is against the express wording of the statute which requires the existence of a guilty intention for the purpose of assuming jurisdiction. For reasons considered above, guilty intent, does not exist in the present case. Learned counsel for the respondent did advert to some precedents in support of his submission to the contrary. However, the ratio of the cited precedents is not attracted in the present case as will be shown shortly. 9. We can now examine the grounds which found favour with the learned trial Court to justify cognizance of the alleged offence under Section 3 ibid. At the very outset reference may be made to the extract from the order of the learned trial Court reproduced in paragraph 4 above. From the same it appears that the learned trial Court took Civil Appeal No.16 of 2010 8 cognizance of the alleged offence without making the requisite determination that the complaint disclosed the commission of such offence. The trial Court decided the question of its jurisdiction and the maintainability of the complaint unthinkingly and without, in fact, giving serious consideration to the averments made in the complaint. It has merely been observed that the “epitome of the complaint is that the [appellants] allegedly took the possession of the property owned and possessed by the complainant”. It is implicit in this observation that the ‘intention to dispossess, grab, control or occupy’ cannot be deduced from the complaint. The said observation of the trial Court represents the total consideration given by it to the contents of the complaint. The learned trial Court has also stated that “[o]n the lodging of the complaint the mater was sent to [the] SHO for investigation twice”. The basis on which the learned trial Court took cognizance, however, is neither the complaint nor the police investigation. It is instead, the subsequent report of a Local Commission appointed by the Court. 10. The above noted observations point to the erroneous approach taken by the trial Court as to the maintainability of the complaint. The Court, it should be noted is not obliged on the filing of each complaint, to direct the police to investigate the matter. Section 5 of the Act is clear that “upon a complaint the Court may direct” the police to investigate the matter. This enabling power of the Court can only be exercised on the basis of and after considering the contents of the complaint. The power to direct an investigation under section 5 ibid is to be exercised judicially and not as an unconsidered or mechanical action undertaken on every complaint Civil Appeal No.16 of 2010 9 filed under the Act, regardless of the merits of the same. The purpose of the investigation under the aforesaid statute is to ascertain prima facie, the authenticity of what has been stated in the complaint. The complaint itself has to show that an offence cognizable by the Court has been committed by the accused person(s) named therein. In the present case, from the order of the learned trial Court dated 15.7.2009 it is obvious that the matter was sent to the police “on the lodging of the complaint”. If the learned trial Court had gone through the complaint, in particular, paragraphs 3 and 4 thereof it would have become apparent to it that the dispute between the parties was not of a criminal nature, and as such cognizance was not required to be taken. 11. The aim of directing an investigation by the police is not to add to the allegations or grounds raised in a complaint. The purpose of such investigation, if resorted to by the trial Court, is to inquire into the correctness of allegations made in the complaint itself. The Court need not order investigation under section 5 of the Act if it concludes from the complaint and the material furnished by the complainant in support thereof, that all essential elements of an offence under section 3 ibid are or are not, sufficiently disclosed and established. In the present case when we consider the order of the learned trial Court dated 15.7.2009 it becomes evident that mens rea has been inferred by the learned trial Court on the basis of the musavi prepared by a Local Commission appointed by the Court. Under the statutory scheme, the Court is not to become a party in gathering information or evidence in support of the complaint to justify the existence of mens rea when none can be made out Civil Appeal No.16 of 2010 10 from the complaint itself. In any event, the musavi has no relevance in establishing mens rea in the circumstances noted above, even if the Local Commission’s report is eventually proved correct. This is so because the report prepared by the Local Commission or the musavi at best shows a situation as it exists on ground in the opinion of the Local Commission. It has no intrinsic or probative value, even prima facie, for the purpose of showing on the facts of this case, that the appellants harboured a guilty intent. 12. There is another circumstance in the present case which has to be noted as it implies an absence of mens rea. It has been acknowledged in paragraph 4 of the complaint that the appellants, in particular Waqar Ali, had encroached on the complainant’s land. The word ‘tajawuz’ has been used by the complainant which can only be translated as ‘encroachment’ rather than criminal trespass or unlawful entry with the intention of grabbing the disputed land or of dispossessing the respondent- complainant. This is particularly the case, considering that the complainant claims to have become aware of the encroachment only after the demarcation made by the revenue functionaries. In these circumstances, the various “investigations” undertaken by the Police or by a Local Commission can, only be treated as prima facie evidence of a civil dispute between the parties. This dispute, needless to say, will be decided by the competent Civil or Revenue Courts having jurisdiction in the matter. The learned trial Court also observed that ‘mere encroachment is something different from illegal dispossession as the former does not involve intentional grabbing of property’. However, not finding the element of mens rea in the complaint, the learned Court travelled outside the complaint to Civil Appeal No.16 of 2010 11 draw an unjustified inference from a masavi prepared by the Local Commission. As noted above, this course of action is not envisaged by the Act. 13. As in any criminal case, the complainant is to state the facts which, without extraneous considerations or evidence, satisfy the Court of the existence of every ingredient of an alleged offence. Without this a complainant is not entitled to invoke the aid of the Court and to foist the travails of a criminal trial on the person(s) accused by him. In a very important sense a Court empowered to take cognizance of an offence under the Act, is required to act as a sieve and to filter out those complaints which do not disclose the requisite criminal intent. Courts which have been authorized to try cases under the Act thus have a responsibility to see that the persons named in the complaint have a case to answer, before they are summoned to face trial. This course, unfortunately has not been followed in the present case. As a result the appellants unnecessarily, have had to face trouble, expense and disruption in their lives. In this process the time and scarce resources of the Court have also been wasted and its docket burdened without cause. It may be clarified that the Court may, in the first instance, issue a notice (rather than summons) to the accused person if it requires clarification or in order to ensure that cognizance is justified. 14. The provisions of the Act, in our opinion, have to be interpreted in line with established jurisprudence on criminal law. This will ensure that the process of law is not abused through filing of vexatious complaints. Courts are also duty bound to scrutinize complaints and, if necessary, Civil Appeal No.16 of 2010 12 examine complainants, to protect hapless victims of false complaints or complaints which do not show the existence of all necessary elements of an alleged offence. We should also add that a bald assertion in the complaint alleging mens rea may not (depending on the facts of a case) justify the assumption of jurisdiction if the attendant circumstances set out in the complaint or ascertainable from material filed in support thereof, do not bear out such allegation. 15. We may now turn to the judgment of the High Court, impugned before us. Criminal proceedings initiated on the basis of a complaint entail a two-step process. In the first instance the Court has to decide if the complaint merits further action such as taking cognizance. This decision, properly speaking, cannot be equated with a mere interlocutory order because in respect of the complaint, taking or refusing cognizance brings to an end the first step of the process. The criminal trial commences and can only be said to be pending after cognizance is taken and the accused is summoned. Thus in the event the Court does not find sufficient material in the complaint to justify cognizance, it may dismiss the same without proceeding to order an inquiry or investigation and without summoning the accused. While passing the impugned judgment, the learned Division Bench of the High Court held that the order “of the learned trial Court dated 15.7.2009 is not final which could be challenged in the constitutional jurisdiction and in this sense the petition is premature”. We say with respect, that this is an overly simplistic remark which does not take into account the aforesaid legal aspect of the case. An interlocutory order passed by a Court competent to exercise jurisdiction in a matter, is qualitatively very different from an order passed by a Court to determine if, in the first place, the requisite jurisdictional facts exist which would enable it to proceed in the matter. Support for this legal proposition can be drawn from the case of titled Sind Civil Appeal No.16 of 2010 13 Employees’ Social Security Institution versus Dr. Mumtaz Ali Taj & another (PLD 1975 SC 450). 16. In view of the foregoing circumstances, the pending criminal trial against the appellants commenced on 15.7.2009 because it is on this date “the Court [took] cognizance of the offence” and the matter was adjourned for framing of charge. An order passed after 15.7.2009 but before the conclusion of the trial could appropriately be termed an interlocutory order, but this would not include the said order itself. It is important at this point to bear in mind the distinction between two facets of a Court’s jurisdiction under the Act. The question of jurisdiction may, in one set of circumstances, constitute a pure question of law. Thus a complaint under section 3 of the Act filed before a Judicial Magistrate will be dismissed straightaway or will be returned to the complainant for want of jurisdiction because under section 4 of the Act, the said offence is triable by a Court of Session. The second aspect of jurisdiction is highlighted by the circumstances of the present case where jurisdiction constitutes a mixed question of law and fact. Thus as a matter of law the Court of Session before which the respondent filed his complaint is the Court vested with jurisdiction under section 4 of the Act. However, in order for the Court to exercise its jurisdiction by taking cognizance, certain facts must first be held to exist. These facts which constitute an offence under section 3 of the Act have to be evident from the complaint and documents filed in support thereof. Thus, if the necessary ingredients of an offence under section 3 of the Act are not disclosed through the complaint and accompanying documents, the Court of Session will not be justified in exercising jurisdiction and taking cognizance. It will Civil Appeal No.16 of 2010 14 nevertheless have the jurisdiction to dismiss the complaint on the ground that an offence under section 3 of the Act is not made out. 17. Learned counsel for the respondent-complainant referred to the cases titled Jehandad and 2 others versus The State and another (PLD 2006 SC 270) and Islamic Republic of Pakistan through Secretary, Establishment Division, Islamabad and others versus Muhammad Zaman Khan and others (1997 SCMR 1508) to urge that the order of the learned trial Court dated 15.7.2009 was only an interlocutory order and, therefore, the refusal of the High Court to interfere in the same in writ jurisdiction was unexceptionable. We have gone through the cited precedents but find that the ratio of the same has no application in the case before us. In both cited cases, the jurisdiction of the Court seized of the matter was not in dispute. As such no issue arose as to the maintainability of pending cases in which interlocutory orders were passed and were assailed in the Supreme Court. It was, in the circumstances, held that this Court would not be justified in exercising jurisdiction under Article 185 (3) of the Constitution because the Court seized of the matter which had passed the impugned interlocutory order, was vested with jurisdiction. 18. It may be noted that the Supreme Court is possessed with jurisdiction to interfere even in interlocutory orders passed by a lower Court. If any authority for this legal proposition is required, reference may be made to the case titled Islamic Republic of Pakistan through Secretary, Establishment Division, Islamabad and others versus Muhammad Zaman Khan and others (1997 SCMR 1508). However, in order to regulate its jurisdiction, this Court ordinarily does not interfere with interlocutory Civil Appeal No.16 of 2010 15 orders passed by a Court which has rightly assumed and exercised jurisdiction in a pending matter. In the present case, however, leave was specifically granted “to consider whether the assumption of jurisdiction by the learned Additional Sessions Judge in the circumstances alluded to in the petition” was violative of the mandate of the Act. The issue of whether the trial Court had jurisdiction was not an interlocutory matter in the circumstances of this case considered above. At this point, however, we may add that if a proper and conscious application of mind has been made by a trial Court under the Act before taking cognizance, the High Court and this Court while regulating their jurisdiction under Articles 199 and 185 of the Constitution respectively, will not ordinarily, interfere in such actions. 19. In view of the foregoing discussion relating to the jurisdiction of the trial Court and the reasons which prevailed with the High Court while passing the impugned judgment of 29.10.2009, interference in these orders was warranted under Article 185 of the Constitution. Being aware of the problems faced by accused persons in criminal trials, Courts have to be sensitive to their difficulties. Such difficulties can be avoided or mitigated through the proper and conscious exercise of the power to take cognizance of a complaint under the Act. It was felt necessary by us to highlight the legal issues which arise in this case and to thereby also enunciate the law in terms of Article 189 of the Constitution. 20. In view of the forgoing circumstances, we are not left in any doubt that jurisdiction was assumed by the learned trial Court on an erroneous premise while the learned Division Bench in the High Court also fell in Civil Appeal No.16 of 2010 16 error by declining to exercise writ jurisdiction on the premise that the order of the learned trial Court dated 15.7.2009 was not final and that, therefore, the writ petition filed by the appellants was premature. However, in order to ensure completeness of this judgment it is necessary to discuss further case law cited at the bar by learned counsel for the parties. 21. Learned counsel for the respondent-complainant firstly referred to the case titled Muhammad Abbasi Vs. S. H. O. Bhara Kahu and 7 others (PLD 2010 SC 969) to support the impugned judgment. In the cited case cognizance had not, by then, been taken by the trial Court and it was also observed that the provisions of section 249-A of Cr. P.C. constituted an adequate remedy for redressal of the grievance of the petitioner in the circumstances of the said case. It may be noted that in the present case, the learned trial Court had assumed jurisdiction without the existence of the requisite jurisdictional fact i.e. mens rea. The cited precedent is, therefore, distinguishable on facts and is thus of little help to the respondent. 22. Learned counsel for the respondent-complainant also referred to the case titled Shahabuddin Vs. State (PLD 2010 SC 725). The facts of the cited precedent are also distinguishable. Firstly it is to be noted that the petitioner therein had been convicted after due trial. A factual determination had been made that he had illegally dispossessed the complainant from the property in question. Another important point of distinction is that there was no controversy at all as to the identity of the property in contention which had well defined and undisputed Civil Appeal No.16 of 2010 17 boundaries. In the present case, it is quite evident that the metes and bounds of the respondent’s land were not identifiable on site and he had to resort to the revenue authorities for the purpose of a prima facie, determination in respect of the exact location of his property. Yet another feature which distinguishes the cited precedent on facts is that the petitioner was proved not to have any title in the contested property. In the present case we have already noted that the sale deed in favour of the appellants and the title acquired by them is not disputed by the respondent-complainant. Only the location and boundaries of the said property appear to be in contention between the parties. The case of Shahabuddin supra, therefore, does not advance the respondent’s cause. 23. Cases titled Mumtaz Hussain Vs. Dr. Nasir Khan & others (2010 SCMR 1254) and Muhammad Akram & 9 others Vs. Muhammad Yousaf & another (2009 SCMR 1066) were then cited by learned counsel for the respondent-complainant in support of his submissions. We have gone through these precedents and find the same to be inapplicable to the circumstances of the present case. In the cited cases, the question as to assumption of jurisdiction and taking of cognizance on the basis of the contents of the complaint had not arisen before the Court. The said precedents, therefore, have no application in this case. 24. Lastly, the case titled Rahim Tahir Vs. Ahmed Jan & 2 others (PLD 2007 SC 423) was referred to by learned counsel for the respondent. This case primarily involved the question as to whether the Act was applicable retrospectively. For reasons discussed above, we are not called upon to answer this question in the present case. We are conscious that a Civil Appeal No.16 of 2010 18 general observation has been made in paragraph 6 of the cited judgment to the effect that the Act “would reveal that all cases of illegal occupants without any distinction would be covered by the Act.” The issue of mens rea appears not to have arisen and was not discussed in the said case as the matter primarily focused on the retrospective effect of the Act. The cited case, therefore, does not help the respondent even though there may be aspects in the judgment which require elaboration. This, however, can be attended to in an appropriate case as and when it comes before us. 25. In view of the foregoing discussion, this appeal is allowed. As a consequence the impugned judgment of the High Court dated 29.10.2009 and the order of the learned trial Court dated 15.7.2009 are set aside, with the result that the complaint filed by the respondent is dismissed. There shall be no order as to costs. Judge Judge Judge Islamabad Announced on ____________ M. Azhar Malik/* Approved for reporting.

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE IJAZ UL AHSAN CIVIL APPEAL NO.1703 OF 2013 (Against the judgment dated 31.5.2013 of the High Court of Sindh, Karachi passed in Const.P.No.D-1365/2012) Shahid Anwar Bajwa …Appellant(s) VERSUS S.M. Asif and others …Respondent(s) For the appellant(s): Mr. Shahid Anwar Bajwa, ASC (in person) Mr. M. S. Khattak, AOR For the respondent(s): Not represented On Court’s notice: Mr. Muhammad Waqar Rana, Addl.A.G.P. Date of hearing: 25.1.2018 ORDER MIAN SAQIB NISAR, CJ.- In this appeal with the leave of the Court dated 16.12.2013, the key issue involved is whether the appellant, who is a retired Judge of the High Court of Sindh, is entitled to practice before the same High Court. 2. The facts of the case are that the appellant was appointed as an Additional Judge of the High Court of Sindh vide Notification dated 24.9.2009. Thereafter, he was appointed as a Judge of the said Court under Article 193 vide Notification dated 17.9.2011. He served as a Judge of the said Court till his retirement w.e.f. 4.10.2012. Thereafter, he represented a party in a petition filed before the said High Court as a counsel, wherein an objection was raised to the effect that being an ex-Judge of the same High Court he could not appear as a counsel before that Court. This issue was decided against the Civil Appeal No.1703 of 2013 -: 2 :- appellant and while interpreting the provisions of Article 207 of the Constitution it was categorically held by the Court through the impugned judgment that he is debarred from appearing before the High Court of Sindh. 3. Leave in this case has been granted in the following terms:- “The petitioner remained a permanent judge of the High Court of Sindh and retired on 04.10.2012 upon attaining the age of superannuation. He filed power of attorney to represent a party in a constitution petition before the High Court of Sindh. A primary question arose as to whether there existed a constitutional bar disallowing a retired judge of a High Court to plead before the same Court. The petitioner pleaded his own case and a Division Bench of the High Court of Sindh held that the constitution does not allow the petitioner to plead before the same Court where he had served as a permanent judge. 2. The relevant provision barring a retired judge of a High Court to plead before the certain Courts are incorporated in Article 207 of the Constitution which reads:- “207. Judge not to hold office of profit, etc. (1) A Judge of the Supreme Court or of a High Court shall not- (a) ……………………………………. (b) ……………………………………. (3) A person who has held office as a permanent Judge- (a) of the Supreme Court, shall not plead or act in any court or before any authority in Pakistan; (b) of a High Court, shall not plead or act in any Court or before any authority within its jurisdiction; and (c) …………………………………….” Civil Appeal No.1703 of 2013 -: 3 :- 3. The petitioner had pleaded before the High Court and had argued before us that there was a clear bar against a permanent judge of a High Court to plead before that Court under Article 166(3) of the 1956 Constitution and by the change brought about in the corresponding Article 207 of the 1973 Constitution the bar relates only to Courts subordinate to the High Court where the Judge had served. Article 166(3) of 1956 Constitution reads:- “A person who has held office as a permanent judge of a High Court shall not plead or act before that court or any court or authority within its jurisdiction.” 4. Since the question raised in this petition is one of first impression and requires interpretation of Article 207 of the Constitution regarding constitutional bar on retired permanent judge of a High Court to plead before the same Court leave to appeal is granted.” 4. The appellant in person, has referred to the provisions of Article 207(3)(b) of the Constitution of 1973 as well as Article 166(3) of the Constitution of 1956, which for the purposes of facility of reference are reproduced below:- Article 207(3)(b) “A person who has held office as a permanent judge - of a High Court, shall not plead or act in any court or before any authority within its jurisdiction.” Article 166(3) “A person who has held office as a permanent judge of a High Court shall not plead or act before that court or any court or authority within its jurisdiction.” On the basis of the omission of the words “that Court”, which were present in Article 166(3) of the Constitution of 1956 but were omitted in Article 207(3)(b) of the Constitution of 1973, he argued that the significance of such omission could notbe ignored. Through such Civil Appeal No.1703 of 2013 -: 4 :- deliberate omission by the legislature, the bar of appearance has been restricted to the Courts sub-ordinate to the High Court in which a person has served as a Judge, but there is no longer a bar against appearance before the same High Court. In support of his contentions, reliance has been placed upon the judgments reported as Government of Pakistan Vs. Syed Akhlaque Hussain and another (PLD 1965 SC 527), M/s Haider Automobile Ltd. Vs. Pakistan (PLD 1969 SC 623), AL-Jehad Trust through Raeesul ah 45 Mujahideen Habib-ul-Wahabb-ul-Khairi and others Vs. Federation of Pakistan and others (PLD 1996 SC 324), Lahore Development Authority through D.G. and others Vs. Ms. Imrana Tiwana and others (2015 SCMR 1739) and M/s Mustafa Impex, Karachi and others Vs. The Government of Pakistan through Secretary Finance, Islamabad and others (PLD 2016 SC 808). It is also argued that the case-law, on which reliance has been placed by the learned High Court, while passing the impugned judgment, did not relate to the Constitution of 1973 but to the Constitution of 1962, therefore, these judgments have no relevance to the facts and circumstances of the present case. 5. It is to be noted that the same arguments were raised before the High Court, but after considering the relevant provisions of both the 1973 and the 1962 Constitutions as well as the relevant judgments and other material from our jurisdiction as also from foreign jurisdictions, the learned Division Bench rejected the same. It was held by the Court that the bar on a person who has been a permanent Judge of a High Court as contained under Article 207(3)b) of the Constitution is not limited only to the courts which are under the administrative control of a High Court but it also includes the High Court. Civil Appeal No.1703 of 2013 -: 5 :- 6. The judgment of the High Court is well reasoned and cogent. However, it is appropriate to consider the relevant constitutional/statutory history of the restriction on the ex-Judge(s) of the superior Courts to practice before the same Court. The restriction was first introduced in 1956 in the shape of Article 166(3) of the 1956 of Constitution, however, such restriction ceased to exist in the year 1958 when the Constitution of 1956 was abrogated. Thereafter, the restriction was re-introduced by the Retired Judges (Legal Practice) Order, 1962 (Order of 1962), but the same was limited to such Judges who were removed from service; however, a retired Judge retained the right to practice before the same High Court. In the Constitution of 1962, there was no provision imposing any such restriction on a permanent Judge of the High Court after his retirement or removal, however, by means of the Legal Practice (Disqualifications) Ordinance, 1964, the Order of 1962 was repealed and the bar was re-introduced. Ultimately, the restriction was again introduced in the form of Article 207(3)(b) of the Constitution of 1973. Thereafter, the Ordinance of 1964 was also repealed as the issue had already been dealt with by the Constitution itself. In this regard it is to be noted that the validity of the Ordinance of 1964 was challenged on the ground of being violative of fundamental rights. The Full Bench of the High Court in the case of Syed Akhlaque Hussain Advocate (Writ Petition No. 217 of 1964) held that the provisions of the said Ordinance offended against Fundamental Right, namely, the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business, but on appeal, this Court vide the majority judgment reported as Pakistan v. Syed Akhlaque Hussain (PLD 1965 SC 527) held that the Ordinance of 1964 did not violate any of the Fundamental Rights of citizens embodied in the Constitution. The issue was again considered by this Civil Appeal No.1703 of 2013 -: 6 :- Court in M/S Haider Automobile’s case (supra) wherein it was held as under: - “The right to practice the profession of law is a right available subject to a system of licensing under the Bar Councils Act or under the powers of the High Court under its Letters Patent and of the Supreme Court under its own rules and a person seeking to practise has to obtain a licence in that behalf upon satisfying the Licencing Authority that he fulfils the qualifications laid down and has paid the fees prescribed for that purpose. He is also subject to the disciplinary control of the Courts and the tribunals in which he practises or at any rate was, until the coming into force of the Legal Practitioners and Bar Councils Act, 1965. Under the latter disciplinary control has to a large extent, been transferred to the Bar Councils but the right is nevertheless, not an uncontrolled or absolute right. Nor could it in the very nature of things be. Such regulatory provisions are not and can never be considered to be violative of the Fundamental Right to carry on a trade or profession. The question then is as to whether Ordinance No.II of 1964 did impose any bar which went beyond regulation of the profession. The impugned Ordinance did not prevent, it will be observed, a retired Judge of the High Court from doing chamber practice, that is, advising clients in Chambers or practising in the jurisdiction of a High Court of which he was not a Judge or practising in the Supreme Court. Similarly although a retired Judge or Chief Justice of the Supreme Court was prohibited from practising before any Court or tribunal in Pakistan, his right to do Chamber practice remained unaffected. The Ordinance No.II of 1964 did not, therefore, introduce any total prohibition but it only restricted the forums before which a retired Judge could practise, in the interest of maintaining the independence of the judiciary; preserving the dignity of a person who had held such a High Office and preventing embarrassment both to him and to the Judges before whom he was otherwise likely to appear. Such a restriction was not, in the circumstances, in my opinion, violative of the said Fundamental Right No. 8 and, therefore, Civil Appeal No.1703 of 2013 -: 7 :- the question of the Ordinance being void did not at all arise. I am in this respect, in agreement with Cornelius, C. J. Fazle- Akbar, Yaqoob Ali and Abdus Sattar, JJ. with their opinions in this regard in the case of Government of Pakistan v. Syed Akhlaque Hussain and another.” 7. The rule that a retired Judge is not entitled to appear as a counsel before a Court of equal or lower jurisdiction to the one in which he sat in his capacity as a Judge is found all across the common law world, including England, Canada, India, several US states, Jamaica, Trinidad and Tobago. Reference in this regard may be made to Section 75 of the Courts and Legal Services Act 1990 of UK, which provides a bar on a Judge as under: - 75. Judges etc. barred from legal practice. No person holding as a full-time appointment any of the offices listed in Schedule 11 shall: - (a) provide any advocacy or litigation services (in any jurisdiction); (b) provide any conveyancing or probate services; (ba) carry on any notarial activities (within the meaning of the Legal Services Act 2007); (c) practise as a barrister, solicitor, public notary, licensed conveyancer or licensed CLC practitioner, or be indirectly concerned in any such practice; (d) practise as an advocate or solicitor in Scotland, or be indirectly concerned in any such practice; or (e) act for any remuneration to himself as an arbitrator or umpire. Schedule 11 includes the Judges of the Supreme Court, Lord Justices of Appeal, Puisne Judge of the High Court, Circuit Judges, District Judges, etc. The outline Conditions of Appointment and Terms of Service of High Court Judge in UK also provides such restrictions, i.e. “A High Court Judge shall not practise as a barrister or solicitor or be indirectly concerned in any such practice (S.75 Courts and Legal Civil Appeal No.1703 of 2013 -: 8 :- Services Act 1990). … Any offer of appointment is therefore made on the understanding that appointees will not return to practice”. Similarly, Article 220 of the Indian Constitution imposes restriction on legal practice after being a permanent Judge, i.e., “No person who has held office as a permanent Judge of a High Court … shall plead or act in any court or before any authority in India except the Supreme Court and the other High Courts”. In the light of the above it is clear that in the common law jurisdictions the intention of the legislature has always been to impose a bar on ex-Judges of the superior Courts to appear as counsel before the same Court or the Courts/forums subordinate to that Court. 8. In this backdrop, we shall consider the relevant provisions of the Constitution of 1962 as well as 1973. Article 166(3) of the Constitution of 1962 provided that “A person who has held office as a permanent judge of a High Court shall not plead or act before that court or any court or authority within its jurisdiction”; whereas, Article 207(3)(b) of the Constitution of 1973 provides that “A person who has held office as a permanent judge of a High Court, shall not plead or act in any court or before any authority within its jurisdiction”. A plain reading of two provisions makes it abundantly clear that not only the words “that Court” been omitted, as relied upon by the appellant, but also the word “before” has been replaced with the word “in”, thus, the whole construction of the provision has been changed. Thus, it can safely be held that by the omission of word “that Court” the intention of the legislature is not to allow the ex-Judge of a High Court to appear as a counsel before that Court. In order to ascertain the real intention of the legislature, it is necessary to keep in mind the provisions of Article 207(3)(a) ibid, which provides that “A person who has held office as a permanent judge of the Supreme Court, Civil Appeal No.1703 of 2013 -: 9 :- shall not plead or act in any Court or before any authority in Pakistan”. Thus, from this provision the intention of the legislature is clear that a ban has been imposed on a Judge not only to appear before the courts/forums subordinate to that Court but also from the court where he acted as a permanent judge. This fact further receives support from the fact that when two permanent Judges of the High Court of Sindh i.e. Mr. Rasheed A. Rizvi and Mr. Mushtaq Ahmed Memon, were removed from their office by virtue of the Oath of Office (Judges) Order, 1999, considering that they were restricted to act and plead before the said High Court being permanent Judges, special permission was given to them by means of the Chief Executive’s Order No.5 of 2000. 9. These are the reasons for our short order of even date, whereby the instant appeal is dismissed. CHIEF JUSTICE JUDGE JUDGE Islamabad, the 25th of January, 2018 Approved For Reporting Waqas Naseer

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IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE UMAR ATA BANDIAL. MR. JUSTICE IJAZ UL AHSAN. MR. JUSTICE MUNIB AKHTAR. CIVIL APPEAL NO.171 OF 2019 ON APPEAL AGAINST JUDGMENT DATED 18.12.2018 OF THE HIGH COURT OF BALOCHISTAN IN ELECTION PETITION NO.53 OF 2018. Mir Mujib-ur-Rehman Muhammad Hassani Appellant Versus Returning Officer, PB-41, Washuk & Others Respondent For the Appellant(s): Sardar Muhammad Aslam, ASC. Ch. Akhtar Ali, AOR. For the Respondent(s): Kamran Murtaza, Sr. ASC. Syed Rifaqat Shah, AOR. (For Respondent No.2) M. Amjad, A.D. (For the Election Commission of Pakistan) Dates of Hearing: 10.12.2019 11.12.2019 JUDGMENT IJAZ UL AHSAN, J-. Through this judgment, we are deciding Civil Appeal No.171 of 2019 arising out of the judgment of the Honourable High Court of Balochistan, Quetta dated 18.12.2018 passed in Election Petition No.53 of 2019 (the “Impugned Judgment”). CA No.171 of 2019. - 2 - 2. Brief facts necessary for the decision of this lis are that the Appellant and Respondent Nos.2 to 15 were contesting candidates for a seat in the Provincial Assembly of Balochistan from PB-41 (Washuk), during the general elections held on 25.07.2018. The Appellant secured 12588 votes and Respondent No. 2, who attained the highest number of votes in the contest, secured 12807 votes while the remaining candidates only secured nominal amounts of votes. On 27.07.2018, the Appellant wrote to the concerned Returning Officer (Respondent No.1) for a recount of the votes cast in the entire constituency under section 95(5) and (6) of the Elections Act, 2017 (the “Act”). This application was rejected by Respondent No.1 on 28.07.2018, holding that: “As per section 95(5) of Elections Act,2017, it is not in the domain of the R.O to recount the votes of the entire constituency, hence, the application in hand is hereby rejected.” 3. Aggrieved by the aforenoted order of Respondent No.2, the Appellant approached the Election Commission of Pakistan (“ECP”) and filed two petitions: the first under section 95(6) of the Act for a recount of the votes cast in the entire constituency and the second to seek inclusion/counting of votes cast in two polling stations, namely Polling Station Nos.44 and 45. Since consolidation had been completed in PB-41, the first CA No.171 of 2019. - 3 - petition was dismissed by the ECP vide order dated 01.08.2018 with the following observation: “I am directed to refer to the subject noted above, and to convey that since the consolidation has been completed in PB-41, Washuk and form-49 has been received, therefore, the applicant/petitioner may approach the appropriate forum through an election petition, if so desired.” 4. On 04.08.2018, the Appellant filed Constitutional Petition No.1013 of 2018 before the High Court of Balochistan seeking a recount in PB-41 on the grounds that many of the rejected ballots were valid and that there had been rigging and mismanagement during the elections, whereby many of the postal ballots received by the cut-off date were also rejected on flimsy grounds. This petition was disposed of by the Balochistan High Court vide order dated 15.08.2018, with the observation that since the same matter was also fixed before the ECP, it may be decided at the earliest. 5. Finally, the ECP vide its order dated 11.09.2018, decided the matter in response to the petition filed by the Appellant seeking inclusion/recount of votes cast in Polling Station Nos.44 and 45 together with another petition filed by a candidate for the national assembly seat (NA-270) in the same area. The ECP noted the ambiguities present in the case and irregularities between the accounts and comments received from CA No.171 of 2019. - 4 - the different Presiding Officers and the Returning Officer and ordered the votes from these polling stations to be discarded and fresh polls to be conducted in Polling Station Nos.44 and 45. Aggrieved by this order, several parties approached this Court in appeal, including the Appellant through CA No.1102 of 2018. All the appeals were dismissed through a combined order of this Court dated 01.10.2018, whereby it was held that: “The reasons recorded by the learned Election Commission of Pakistan for re-poll of Polling Stations No.44 and 45 with respect to PB-41 and NA-270 are absolutely apt and cogent and in accordance with the jurisdictional authority vested with it.” 6. In accordance with ECP’s order dated 11.09.2018, which was upheld by this Court, fresh polls were conducted in Polling Station Nos.44 and 45 on 07.10.2018. While no votes were cast in Polling Station No.45, after adding up the votes from Polling Station No. 44 the Appellant secured a total of 12705 votes while Respondent No.2 secured 13040 votes and again maintained his lead – this time by a margin of 335 votes. On 15.10.2018, Respondent No.2 was notified as the Returned Candidate vide Notification No.F.2(37)/2018-Cord(1). In response to this, the Appellant approached the Election Tribunal of the High Court of Balochistan through Election Petition No.53 of 2018 which was dismissed vide the Impugned Judgment against CA No.171 of 2019. - 5 - which the Appellant has now approached this Court in the present Appeal. 7. Learned Counsel for the Appellant has extensively argued the matter. His primary contention is that under section 95(5) of the Act, it is mandatory for a Returning Officer to recount votes if a request has been made by a contesting candidate, before the commencement of consolidation proceedings, in an election where the margin of victory was less than five percent of the total votes polled or ten thousand votes, whichever was less. As such, he has argued that Respondent No.1 could not have rejected the Appellant’s request for a recount in the entire constituency, given that Respondent No.2’s margin of victory fell well within the threshold provided in section 95(5) of the Act, vide his order dated 28.07.2018. Consequently, he asserts that the Election Tribunal was required in law to direct recount of the votes or at least the rejected votes. 8. Learned Counsel for the Appellant has also alleged that several irregularities and unlawful practices took place during the election, including instances of the Appellant’s polling agents not being allowed to witness counting, the casting of bogus votes, intimidation of voters by Respondent No.2 and his agents, etc. As a result, he contends that the Impugned Judgment be set aside, directions should be issued for CA No.171 of 2019. - 6 - recounting of the votes, and given the alleged unlawful practices and irregularities, the election of Respondent No. 2 should be declared null and void and the Appellant be declared the Returned Candidate instead. 9. On the other hand, Learned Counsel for Respondent No. 2 has argued that there are no presumptions in favor of the Appellant in law or fact and the onus lies upon him to prove every fact that he has alleged in his pleadings as per Articles 117 to 119 of the Qanun-e-Shahadat Order, 1984. It is his contention that the Appellant during the proceedings and in his pleadings has failed to prove whether his original application for a recount before the Returning Officer was even filed before the commencement of any consolidation proceedings, as required by section 95(5) of the Act, and whether any of the illegal activities and unlawful practices alleged by the Appellant even took place in the manner described by him. 10. In any case, Learned Counsel for Respondent No.2 has argued that the Appellant did petition the High Court of Balochistan challenging the order of the Returning Officer dated 28.07.2018 (rejecting the application for a recount in the entire constituency), but the same was disposed of on 15.08.2018, with the consent of both parties and with a direction to the ECP to decide the matter. After the ECP ordered re-polls in two polling stations vide its order dated 11.09.2018, the Appellant assailed CA No.171 of 2019. - 7 - the order before this Court and the same was upheld vide order dated 01.10.2018. As a result, Learned Counsel for Respondent No.2 asserts that the matter has attained finality and the Appellant by not pressing the matter, first before the High Court and later by not moving another application after the re-polls conducted on 07.10.2018, has abandoned his plea and cannot rely on the same at this stage. 11. Learned Counsel for Respondent No.2 has pointed out that since the earlier plea was abandoned by the Appellant, at this stage the only procedure for obtaining a recount was through the Election Tribunal under section 101 of the Act read with rules 139 and 150 of the Election Rules, 2017. However, he argues that to avail this remedy the Appellant’s election petition before the Election Tribunal should have complied with the requirements set out in sections 144 and 145 of the Act, which the Appellant failed to meet. To this end, Learned Counsel for Respondent No.2 has relied on the Impugned Judgment and the requirements outlined in section 144(1)(b) of the Act to point out that the Appellant’s election petition was patently deficient and non-proceedable, did not contain a precise statement of material facts, full particulars of corrupt and illegal practices, names of the parties involved with dates and venues, etc. as per mandatory requirements of the law. CA No.171 of 2019. - 8 - 12. Lastly, Learned Counsel for Respondent No.2 has relied on the judgments of this Court, wherein principles concerning the recount of votes before the Election Tribunal have been laid out. He has argued that even though these principles were laid out when the old law, the Representation of the People Act, 1976 (“ROPA”), was in place they continue to hold field today since the legislature has not made anything mandatory on the Election Tribunal with respect to recounts in the new law (the Act). To this end, he has placed reliance on the judgments of this Court in Jam Madad Ali v. Asghar Ali Junejo (2016 SCMR 251), Ch. Muhammad Ashraf Warraich v. Muhammad Nasir Cheema (2016 SCMR 998), and Syed Khaliq Shah v. Abdul Raheem Ziaratwal (PLD 2017 SC 684). 13. We have heard the Learned Counsel for the parties at length and have also perused the available record. At the very outset, a distinction must be drawn between the first round of litigation – which was initiated by the Appellant after the general elections were held on 25.07.2018 and ended with the order of this court dated 01.10.2018, wherein ECP’s order dated 11.09.2018 was confirmed – and the second round of litigation – which was initiated by the Appellant through an election petition filed after re-polling in Polling Station Nos.44 and 45 of PB-41 on 07.10.2018 – wherefrom this present Appeal has arisen. This distinction becomes particularly important as we look at the CA No.171 of 2019. - 9 - pleas taken by the Appellant at various stages before several fora during this controversy. 14. It is a matter of record that the Appellant did request a recount in the entire constituency following the results of the general elections held on 25.07.2018, under section 95(5) of the Act. After his request was rejected by the Returning Officer on 28.07.2018, the Appellant approached the ECP to ask for a recount under section 95(6) of the Act and, through a separate application, to also seek inclusion/counting of the votes cast in Polling Station Nos.44 and 45. The Appellant’s first application, for a recount, was dismissed by the ECP on 01.08.2019 due to the fact that consolidation proceedings had been completed in PB-41, against which the Appellant filed a constitutional petition before the High Court. The record also shows that this petition was disposed of on 15.08.2018, with the consent of both sides and with directions to the ECP, which was already considering the matters raised in the Appellant’s second application, to decide the same at the earliest. Consequently, when the ECP passed its order on 11.09.2018 directing that re-polls be conducted in the two polling stations in question, the Appellant also challenged it before this Court vide CA No.1102 of 2018. This Appeal was dismissed by this Court on 01.10.2018 and the ECP’s decision was confirmed, and hence attained finality. CA No.171 of 2019. - 10 - 15. As pointed out by the Learned Counsel for Respondent No.2, we note that during this course of events the Appellant of his own accord chose to not press the matter of recount, which was decided by the ECP on 01.08.2018, and hence abandoned this plea. In any case, when the matter was finally decided by the ECP on 11.09.2018, wherein it comprehensively looked at the allegations made by the Appellant and solicited explanations and comments from all concerned, the Appellant approached this Court in Appeal and the same was dismissed. At this point, the Appellant did have the avenue of Review, against the order dated 01.10.2018 of this Court, but he chose not to exercise it and hence our judgment on the matter attained finality. With this culmination of the first round of litigation initiated by the Appellant, the issues raised by the Appellant therein have now become a past and closed transaction inter se the parties to the lis and cannot now be re- agitated. 16. It is, however, true that section 142 of the Act, entitles the Appellant to file an election petition within forty-five days of the publication of the name of the returned candidate to challenge the election. Once Respondent No.2 was notified as the Returned Candidate on 15.10.2018, the Appellant did indeed file an election petition on 06.11.2018 before the Election Tribunal of the High Court of Balochistan, which was dismissed vide the CA No.171 of 2019. - 11 - Impugned Judgment. However, given that the matters arising out of the earlier election had already been challenged by the Appellant and had attained finality, the Appellant cannot be allowed to now re-agitate the same matters by means of an alternative remedy that was not resorted to earlier. If this was allowed, it would go entirely contrary to the “doctrine of election” which exists to ensure that once a litigant has made the choice of pursuing a certain course of action available to him or has abandoned a certain plea/action, that he is not allowed to reopen the same matter only because he has received unfavorable results as a result of his first choice. This principle has been elaborated by this Court on various occasions. Reliance may be placed on Trading Corporation of Pakistan v. Devan Sugar Mills Limited (PLD 2018 SC 828), where it was explained that: “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 a host of available concurrent or co-existent proceeding/actions or remedy from a forum of competent jurisdiction vest with the suitor. Once choice is exercised and election is made then a suitor is prohibited from launching another proceeding to seek a relief or remedy contrary to what could be claimed and or achieved by adopting other proceeding/action and or remedy, which in legal parlance is recognized as doctrine of election, which doctrine is culled by the courts of law from the well-recognized principles of waiver and or abandonment CA No.171 of 2019. - 12 - of a known right, claim, privilege or relief as contained in Order II, rule (2) C.P.C., principles of estoppel as embodied in Article 114 of the Qanun-e-Shahadat Order 1984 and principles of res-judicata as articulated in section 11, C.P.C. and its explanations. Doctrine of election apply both to the original proceedings/action as well 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 IX, rule 13 (if proceedings are ex-parte), section 47 (objection to execution), section 114 (by way of review of an order), section 115 (revision), under Order XXI, rules 99 to 103 C.P.C. and section 96 C.P.C. (appeal against the order/judgment) etc. Though there is no bar to concurrently invoke more than one remedy at the same time against an ex-parte order/judgment. However, once election or choice from amongst two or more available remedy is made and exhausted, judgment debtor cannot ordinarily be permitted subsequently to venture into other concurrently or coexisting available remedies.” 17. While, as a result of the discussion above, we do not think that the question of recounting in the entire constituency of PB-41, Washuk, is a live issue in the present Appeal, an important question has been raised concerning the interpretation of section 95(5) of the Act, which we would like to address at this juncture. It has been argued by the Learned Counsel for the Appellant that section 95(5) of the Act mandates a Returning CA No.171 of 2019. - 13 - Officer to conduct a recount if he has been requested in writing by a contesting candidate to do so, provided that the threshold of the margin of victory provided in section 95(5) is met. For ease of reference, section 95(5) of the Act is reproduced below: “(5) Before commencement of the consolidation proceedings, the Returning Officer shall recount the ballot papers of one or more polling stations if a request or challenge in writing is made by a contesting candidate or his election agent and the margin of victory is less than five percent of the total votes polled in the constituency or ten thousand votes, whichever is less, or the Returning Officer considers such request as not unreasonable: Provided that the recount shall be made by the Returning Officer only once.” 18. From a plain reading of the provision, it is quite clear that the Returning Officer is empowered to recount the ballot papers of “one or more polling stations” only before consolidation proceedings have commenced. Furthermore, it is also clear that such a recount can only be triggered on the written request of a contesting candidate (or his election agent) in an election where the margin of victory was less than five percent of the total votes polled or ten thousand votes, whichever was less. However, once the words “or the Returning Officer considers such request as not unreasonable” at the end of the sentence are read along with the remaining conditions it becomes clear that ‘such’ an application for a recount must be considered reasonable by the Returning Officer in addition to meeting the other pre-conditions imposed by the provision. To our mind, this is the correct reading of CA No.171 of 2019. - 14 - section 95(5) of the Act based on the linguistic construction of the sentence, which makes it abundantly clear that the last part of the sentence (concerning reasonableness) is to be read conjunctively with the remaining conditions imposed on an application for a recount to qualify. With this interpretation in mind, therefore, in order for the Returning Officer to order a recount under section 95(5) of the Act, (i) a written application must be made by a contesting candidate or his election agent before the commencement of consolidation proceedings, (ii) the application must be in relation to an election where the margin of victory was less than five percent of the total votes polled in the constituency or ten thousand votes, whichever was less, and (iii) the Returning Officer must consider such a request to be reasonable (or not unreasonable as the law states). Once all these conditions have been met, only then will a Returning Officer order a recount in “one or more polling stations”. 19. It is important to note, however, that a similar provision existed in the old law, section 39(6) of ROPA that preceded section 95(5) of the Act, as well. Section 39(6) of ROPA stated that: “(6) The Returning Officer may recount the ballot papers- (a) upon the request of, or challenge in writing made by, a contesting candidate or his election agent, if the Returning Officer is satisfied that the request or the challenge is reasonable; or CA No.171 of 2019. - 15 - (b) if so directed by the Commission, in which case the recount shall be held in such manner and at such place as may be directed by the Commission.” From a bare reading of this provision, it is obvious that in the new law (section 95(5) of the Act) the legislature has sought to limit the situations in which applications for a recount before the Returning Officer can be made in the first place. The intention behind this quite clearly is to limit the number of frivolous applications for a recount made by losing candidates in constituencies around the country and to ensure that recounts are entertained by Returning Officers only in those constituencies where the margin of victory is small enough to justify a recount, and an objective and tentative assessment is made by the Returning Officers on the basis of material placed before them to the effect that prima facie there are grounds justifying a recount and the request for such recount is not wholly unreasonable. However, if an election does not meet the numerical threshold provided in section 95(5) of the Act, the law in section 95(6) of the Act, still provides for the ECP to order a Returning Officer directly to conduct a recount, if it deems the circumstances to be grave enough to warrant such a recount. 20. In any case, however, the law does not provide a criterion based upon which a Returning Officer may decide whether a particular application is not unreasonable. The exercise of recounting ballot papers for any number of polling CA No.171 of 2019. - 16 - stations is a tedious and time/resource-consuming task and it cannot be taken up indiscriminately, carelessly, without due application of mind and a tentative assessment of the material available on record, and in cases where only vague and general allegations and insinuations have been made. This exercise, which can potentially take months to complete, can arguably lead to the constituency remaining unrepresented for long periods of time, defeating the very purpose of the law and the concept of democratic representation. To this end, we are clear in our minds that even if a request has been made by a contesting candidate in an election where the threshold set by section 95(5) is met, but the request itself does not specify any cogent reasons for the request along with identifying specific polling stations where the recount is being requested and giving credible materials/information, it would stand to reason that the Returning Officer should have the option/discretion to reject such a request. If this was not the case, we would have the absurd situation where at the request of an aggrieved candidate recounting takes place even at polling stations where the candidate in question has won or that without any allegation of rigging, corrupt and unlawful practices, and particulars based on which malpractices and rigging is being alleged, a candidate could still claim a recount by way of a record change and a fishing expedition simply showing that the margin of victory was less than five percent of the total votes polled in the constituency CA No.171 of 2019. - 17 - or ten thousand votes, whichever is less. If that were so, the phrase “or the Returning Officer considers such request as not unreasonable” would become redundant. It is settled law that no redundancy can be attributed to the legislature. 21. We therefore hold that the provisions of section 95(5) can only be triggered after all the pre-conditions therein have been met and the contents of the request itself lend credence to the need for a recount. To ensure this, the Returning Officer must exercise his discretion and ascertain the reasonableness of the request and decide whether recounting is to take place in “one or more” polling stations, or not at all. A reasonable request, therefore, must at least contain a narrative of the events that gave rise to the request in the first place, the details along with credible material/information regarding events that may have caused the contesting candidate to demand the recount together with the names and details of any individuals alleged to be involved, and the specific polling stations at which the recount is being requested. Once all the aforenoted conditions have been met, then the Returning Officer must apply his mind to the facts and circumstances of the individual case and decide if, and in how many polling stations, a recount is warranted. 22. It is clear and obvious from the record available before us, that after re-polls were conducted, according to ECP’s CA No.171 of 2019. - 18 - order dated 11.09.2018 and the order of this Court confirming the same on 01.10.2018, the Appellant filed Election Petition No.53 of 2018 before the Election Tribunal of the High Court of Balochistan. In this election petition, the Appellant has again objected to the rejection of his initial request to recount ballot papers in the entire constituency and has made vague generalized and unsubstantiated allegations regarding several irregularities, malpractices, and unlawful activities during the entire election. As we have discussed above, since the matters brought up by the Appellant with respect to the recount and ancillary unlawful and illegal activities alleged by him had already been litigated before, they could not be reopened and re- examined. However, as far as the Appellant’s contentions with respect to the re-polling that took place in Polling Station Nos.44 and 45 of PB-41, and the many allegations leveled by him on the conduct of these re-polls, we are inclined to agree with the view taken by the learned Election Tribunal of the High Court of Balochistan in the Impugned Judgment. 23. The record shows that the allegations and insinuations made by the Appellant in his election petition were deficient in many respects. Section 144 of the Act provides for the contents of an election petition, the documents that must be attached with it, and the relief that can be claimed by the Appellant. In this respect, it is clear that the Appellant is CA No.171 of 2019. - 19 - required to provide the full particulars of any corrupt or illegal practices alleged by him to have taken place, the names and other details of the individuals he believes to be responsible for such practices, and the date and place of the commission of such practices or acts together with documentary evidence in support of such allegations. The Appellant has abysmally failed to provide these details. While the record shows that the Appellant did annex sixteen affidavits-in-evidence in support of his application, perusal of these affidavits ex facie shows that they are all identical and a duplicate of allegations made and details provided by the Appellant in every one of them. As a result, the Appellant’s election petition is rendered entirely deficient by virtue of section 144 of the Act. 24. The Appellant’s request for recounting and verification of the votes cast in the re-polls conducted on 07.10.2018 in Polling Station Nos.44 and 45 of PB-41 is similarly deficient. The record shows that no objections were raised during the re-polls by the Appellant or his election agents while the polling took place. The Appellant has alleged that bogus votes were cast by supporters of Respondent No.2 during the re-polls. However, no objections against the casting of such votes have been found on the record. This is especially problematic given that section 86 of the Act explicitly provides for challenges to be CA No.171 of 2019. - 20 - made by candidates in such situations at the time of the occurrence. 25. The record also shows that following the re-polls conducted on 07.10.2018, the Appellant filed a petition for recounting of votes before the ECP on 10.10.2018. However, this petition was withdrawn by the Appellant of his own accord during the pendency of his election petition which was dismissed via the Impugned Judgment. In these circumstances, while it is true that the learned Election Tribunal of the High Court of Balochistan did have the right to exercise its power to order a recount and/or verification of the votes in question we are not surprised that it chose to not exercise such discretion, given the many obvious and glaring deficiencies in the petition filed by the Appellant and the allegations made by him. 26. In these circumstances, we hold that the learned Election Tribunal of the High Court of Balochistan, in the Impugned Judgment, has acted well within its powers and has exercised its discretion and authority fairly and correctly in coming to its conclusions. Based on these reasons and in view of the aforementioned findings and analysis of the relevant provisions, we find no reason to interfere with the Impugned Judgment. Consequently, this Civil Appeal No.171 of 2019 is dismissed, with costs. CA No.171 of 2019. - 21 - JUDGE JUDGE JUDGE ISLAMABAD, THE 11th of December 2019. APPROVED FOR REPORTING MUA/* CA 171/2019 Munib Akhtar, J.- I have had the advantage of reading in draft the judgment proposed to be delivered by my learned brother, Ijaz ul Ahsan, J., which has the concurrence of my learned brother, Umar Ata Bandial, J. While I am generally in agreement with the proposed judgment and certainly in accord with the view that the appeal fails, I am, with respect, unable to agree with the interpretation placed on s. 95(5) of the Elections Act, 2017 (“2017 Act”) (paras 17-21 of the majority judgment). While perhaps those observations may be obiter inasmuch as it is expressly noted in para 17 that “the question of recounting in the entire constituency… is [not] a live issue in the present Appeal”, since a detailed analysis of the statutory provisions has been undertaken, I have also ventured to express my views on the same. 2. Section 95(5) had its counterpart in s. 39(6) of the predecessor legislation, the Representation of People Act, 1976 (“1976 Act”) which has also been considered in the majority judgment. Subsection (6) of s. 95 is also of some relevance. For convenience these are again reproduced below (emphasis supplied): Section 95: (5) Before commencement of the consolidation proceedings, the Returning Officer shall recount the ballot papers of one or more polling stations if a request or challenge in writing is made by a contesting candidate or his election agent and the margin of victory is less than five percent of the total votes polled in the constituency or ten thousand votes, whichever is less, or the Returning Officer considers such request as not unreasonable: Provided that the recount shall be made by the Returning Officer only once. (6) The Commission may, before Section 39: (6) The Returning Officer may recount the ballot papers— (a) upon the request of, or challenge in writing made by, a contesting candidate or his election agent, if the Returning Officer is satisfied that the request or the challenge is reasonable; or (b) if so directed by the Commission, in which case the recount shall be held in such manner and at such place as may be directed by the Commission. CA 171/2019 2 conclusion of the consolidation proceedings, for reasons to be recorded, direct the Returning Officer to recount the ballot papers of one or more polling stations. 3. In essence, the majority have concluded that the word “or”, where appearing in s. 95(5) as emphasized above, is to be conjunctively. Thus, according to the majority view the subsection contemplates that a recount is to take place only if both the conditions, i.e., “the margin of victory is less than five percent of the total votes polled in the constituency or ten thousand votes, whichever is less” and “the Returning Officer considers such request as not unreasonable” are fulfilled and applicable together (see para 18). (The other conditions also mentioned in the subsection are, for present purposes, unexceptionable.) With respect, I am unable to agree. In my view, the word “or” is to be given its natural meaning and read disjunctively. In other words, the subsection contemplates two separate and distinct conditions, and a recount is permissible if either one of them is met. 4. It is of course well settled that in appropriate circumstances the word “or” can be read as “and” and vice versa. However, in my respectful view s. 95(5) requires no such exercise and does not call for any such conclusion. The reason is that the first and second conditions are qualitatively distinct, inasmuch as the first contains no element of discretion with the Returning Officer, while the second one does (though in rather limited circumstances, as explained below). The first condition becomes applicable simply on an affirmative answer to an arithmetical question: is the margin of victory the lesser of (a) ten thousand votes or (b) less than five percent of the total votes polled in the constituency? The first number is of course an absolute: 10,000 votes. The second is a matter of calculation, of adding up the total votes cast and calculating five percent thereof. That too yields a specific number. The margin of victory (which is itself a specific number) is then to be compared with these two numbers. If it is less than either one of CA 171/2019 3 them the first condition is fulfilled. Thus, there is no discretion at all with the Returning Officer. Insofar as the second condition is concerned, there is an element of discretion: the Returning Officer must be satisfied that the request is not unreasonable. Only then is the condition applicable. In my view, with respect, to yoke these conditions together is to misread, and hence misapply, the legislative intent. 5. One result of the view that finds favor with the majority is that the word “shall” appearing in s. 95(5) must necessarily be read as “may”. In my view, the legislature (which of course was only too well aware of the previous state of the law) has deliberately departed from the discretion that had earlier vested in the Returning Officer under s. 39(6). The “shall” used in s. 95(5) must therefore be given its intended mandatory effect. This emerges clearly if the relevant “or” is read disjunctively. In the first condition, as soon as the arithmetical exercise is concluded, and the relevant question answered in the affirmative, the recount must take place if such an application is moved. It emerges also, in my view, in respect of the second condition, though perhaps less obviously. Before considering this aspect, I may note that the subsection speaks of a “challenge” or a “request” being made to the Returning Officer. This dual usage also lends support to the view that I take. Inasmuch as the second condition has an element of discretion, there is a “request” to the Returning Officer, and indeed the second condition specifically repeats this word. On the other hand, the word “challenge” is certainly appropriate for the first condition. The arithmetical calculations can be carried out by anyone and on such basis the applicant can throw out a peremptory “challenge” to the count. If the two conditions are rolled into one then there can only be a “request”, and the word “challenge” is rendered redundant. 6. As I understand it the majority judgment essentially finds no difference between the requirement previously to be found in s. 39(6)(a) that the Returning Officer could, in his discretion, allow a CA 171/2019 4 recount if he found the request to be “reasonable”, and the requirement now contained in the second condition of s. 95(5), that the Returning Officer find the request to be “not unreasonable”. If so, I am, with respect, unable to agree. While at first sight such an equation may seem to exist, the actual position is materially different. Under the 1976 Act, the onus lay on the applicant to show that his request was reasonable. Furthermore, even if, in law, it was, the use of the word “may” meant that the Returning Officer still retained discretion to nonetheless refuse a recount. Under the present law, the applicant must obviously, if he seeks recourse to the second condition, set out the reasons for seeking a recount. An application in terms of the second condition without any reasons would be liable to dismissed out of hand. However, if reasons are given then the onus lies on the Returning Officer (or the other contesting candidates) to first show that the request in unreasonable. It is here that the Returning Officer has discretion. If he concludes that the request is unreasonable, then the onus would shift on the applicant to show that this is not so. And if, in law, the applicant is correct, then the Returning Officer would have no further discretion; the word “shall” ensures that the recount must be ordered. Here, an interesting latent ambiguity in s. 39(6) may be noted. The word “may” as used therein had, at least at first sight, appeared to control both clauses (a) and (b). But that would have meant that even if the Election Commission had ordered a recount the Returning Officer could have refused to do so. Obviously, such a conclusion would have been completely untenable. Thus, under the previous law the word “may” would have had to be read as such for the first clause, but as “shall” for the second. The present law obviates any such difficulty by putting the power of the Election Commission in a separate subsection. 7. The majority judgment also sets out in some detail the legislative policy that would result in the interpretation that finds favor with it. Again, with respect, I am unable to agree. In my view, to the extent that the legislative policy can at all be ascertained from the provisions, it points in the opposite direction. By CA 171/2019 5 altogether removing the Returning Officer’s discretion in a situation where the first condition applies, and restricting it to within a narrow ambit in relation to the second (as explained above) the policy of the law appears to be to allow recounts to take place at the earliest stage. This is so to limit, if not altogether foreclose (that would, perhaps, be hoping too much), such challenges at a later stage, whether by way of an election petition under Article 225 (i.e., in terms of the relevant election law) or constitutional petitions in the High Courts or even this Court. The democratic principle is of course that once the people have spoken all other voices must fall silent. However, elections are, more often than not, strongly contested. Sometimes, after the heat and especially in the immediate aftermath of the contest, a losing candidate is unable to acknowledge that he has indeed lost, should respect the verdict of the people and wait for the next election cycle. By allowing for recounts in terms as now contained in s. 95(5), the policy of the 2017 Act appears to be to allow for the “cooling off” to take place at an early stage. If as a consequence a little more time is required or taken to officially finalize matters, the law clearly regards that as time well spent. 8. Subject to the foregoing, I also hold that the appeal fails and stands dismissed. Judge

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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 SAJJAD ALI SHAH Civil Appeal No.1729 of 2019. (Against the order dated 02.10.2019 passed by the Islamabad High Court, Islamabad in ICA No.37 of 2019). Mirza Muhammad Nazakat Baig. …Appellant(s) Versus Federation of Pakistan through Secretary Ministry of Law & Justice, Islamabad and another. …Respondent(s) For the Appellant(s): Mr. M. Shahid Kamal Khan, ASC. For the Federation: Mr. Sohail Mehmood, DAG. Mr. M. Kassim Mirjat, AOR. For Pak. Bar Council: Mr. Zulfiqar Abbas Naqvi, ASC. Syed Rifaqat Hussain Shah, AOR. Date of Hearing: 28.01.2020. O R D E R IJAZ UL AHSAN, J.- This appeal with the leave of the Court arises out of a judgment of a Division Bench of the Islamabad High Court, Islamabad through which an Intra Court Appeal filed by the appellant was dismissed. The said ICA arose out of a judgment of a Single Bench of the same Court through which a constitutional petition filed by the Appellant was dismissed. Civil Appeal No.1729 of 2019. 2 2. Leave to appeal was granted by this Court vide its order dated 30.10.2019 which for ease of reference is reproduced below: ”It is contended by the learned counsel for the petitioner that Pakistan Bar Council is a Statutory body established under the Legal Practitioners and Bar Councils Act, 1973 and that such Bar Council registers the Bar Associations all over Pakistan, including the Supreme Court Bar Association and whatever the rules are framed for the Bar Associations, they are framed by the Pakistan Bar Council. He contends that Rule 9 of the Supreme Court Bar Association of Pakistan Rules, 1989, was amended by Notification of Pakistan Bar Council dated 18.08.2018 by which first proviso to clause (a) of Rule 9 was substituted by another proviso in which Islamabad and Rawalpindi were shown as one place among which the office of President of the Supreme Court Bar Association will be rotated. He contends that Islamabad is a Capital Territory while Rawalpindi is already part of the Province of the Punjab and thus these two cities cannot be clubbed together for providing a scat of one President rather Islamabad being a Capital Territory should have its own President and Rawalpindi being a part of Punjab should not be separated from it. 2. The submissions made by the learned counsel for the petitioner needs consideration. Leave to appeal is granted to consider inter alia the above submissions of the learned counsel. The appeal will be herd on the available record, however, the parties are allowed to file additional documents. As the matter pertains to the Bar Association Affairs, office is directed to fix the same expeditiously. 3. Notice be issued to the Attorney General for Pakistan under Order XXVIIA CPC. Notice be also issued to the Secretary, Supreme Court Bar Association. Petitioner is directed to implead Supreme Court Bar Association as one of the respondents and file amended title of the case in this regard within a period of one week.” 3. The brief facts necessary for decision of this lis are that the appellant who is a member of the Supreme Court Bar Association filed a constitution petition before the Islamabad High Court challenging the vires of Rule 9 (a) of the Supreme Court Bar Association of Pakistan Rules, 1989. Through the said rule while granting the right of Presidency of the Civil Appeal No.1729 of 2019. 3 Supreme Court Bar Association to Islamabad Capital Territory on rotational basis, the territory of Rawalpindi was also bracketed with the Islamabad Capital Territory. The stance taken by the appellant was that Rule 9(a) was discriminatory inasmuch as the right of Presidency had been granted to every Province including Punjab, however, while Islamabad Capital Territory was also given such privilege, the area of Rawalpindi had been added with it which is a part of Punjab. Hence the amendment was discriminatory as a part of Punjab had been tagged with the Islamabad Capital Territory. On an objection was raised regarding competence and maintainability of a constitution petition in the matter. It was contended that the Supreme Court Bar Association of Pakistan Rules, 1989 were statutory in nature inasmuch as the rule in question was amended by the Supreme Court Bar Association, which amendment was subsequently notified by the Pakistan Bar Council. It was further argued that Pakistan Bar Council as well as Supreme Court Bar Association were statutory bodies owing their creation to the Legal Practitioners and Bar Councils Act, 1973 (“Act of 1973”). Hence a petition under Article 199 of the Constitution of Islamic Republic of Pakistan was competent. The learned Single Judge declined to interfere in the matter on the ground that the Legal Practitioners and Bar Councils Act, 1973 provides for various fora to its members for raising their grievances. He concluded that an adequate and efficacious remedy was available to the Appellant under the Act of 1973. Further, the Appellant could have raised his grievance Civil Appeal No.1729 of 2019. 4 through the Islamabad Bar Council which he had failed to do. Therefore the petition was not maintainable and was dismissed in limine. In Intra Court Appeal, the learned Division Bench came to the conclusion that the Supreme Court Bar Association of Pakistan Rules, 1989 were non- statutory and the Supreme Court Bar Association did not fall within the definition of “person” within the contemplation of Article 199 of the Constitution of the Islamic Republic of Pakistan. It was further concluded that neither the Supreme Court Bar Association of Pakistan nor the Pakistan Bar Council fulfilled the requirements of the, “functionality rule” and as such were not amenable to the writ jurisdiction of the High Court. The appellant being dissatisfied of the afore- noted judgments has approached this Court and has more or less repeated the arguments made before and rejected by the High Court. 4. We have heard the learned counsel for the parties and gone through the record. 5. The appellant has challenged the amendment made by the Supreme Court Bar Association of Pakistan in the Rules, 1989. The extract of the resolution whereby the amendment was made in the Rules of 1989 is as follows: “Amendments in Rule 9 of the Supreme Court Bar Association of Pakistan Rules, 1989:- (i) The words NWFP are proposed to be amended by the words Khyber Pakhtunkhwa in Rule 9(a) ii, so that the name of the Province be amended in the light of the provisions of the Constitution of the Islamic Republic of Pakistan, 1973. Civil Appeal No.1729 of 2019. 5 (ii) At the end of the first proviso to clause (a) of Rule 9, signs, figures and words, province, Islamabad/Rawalpindi may be added in the following manner:- i. Balochistan; ii. Khyber Pakhtunkhwa; iii. Punjab; iv. Sindh; v. Islamabad/Rawalpindi; and vi. Punjab.” 6. A perusal of the afore-noted amendment shows that the territory of Islamabad and Rawalpindi has been added to the rotational Presidency mechanisms provided for the President-ship of the Supreme Court Bar Association. Rule 9(a) is designed to ensure that the Presidency of the Supreme Court Bar Association goes to all regions of Pakistan and is not monopolized by one region owing to numerical strength. In the first place we have been informed by the learned counsel appearing on behalf of the Pakistan Bar Council as well as the Supreme Court Bar Association that the aforesaid amendment was tabled in the Annual General Meeting of the Association in which all members of the Association including members of the Islamabad Bar Association and the Rawalpindi Bar Association had a right to cast their votes and express their grievances (if any). Admittedly, the said resolution was passed without any major objection from any side. Further, it is clear and obvious to us that mechanism for redressal of such grievances is available under the Legal Practitioners and Bar Councils Act, 1973. There is no denial of the fact that the said mechanism and alternate remedies have not been availed by the Appellant Civil Appeal No.1729 of 2019. 6 either directly or through the good offices of the Islamabad Bar Council. 7. A bare reading of the provisions of the Legal Practitioners and Bar Councils Act shows that the Act provides for establishment of Bar Councils in the Provinces as well as the Islamabad Capital Territory. It deals with all matters relating to elections of office bearers, disciplinary and other professional matters, constitution of committees, their powers and other related and incidental matters. However, it is clear that other than the Attorney General for Pakistan being the ex-officio, Chairman Pakistan Bar Council and Advocates Generals of the Provinces and Islamabad Capital Territory being ex-officio, Chairman of the Provincial Bar Councils and Islamabad Capital Territory neither the Provincial nor the Federal Government exercise any administrative control over the affairs of the Pakistan Bar Council or the Provincial Bar Councils. Pakistan Bar Council is a statutory body which is autonomous and generates its own funds independently. The Government does not have any control over it. Likewise, the Islamabad Bar Council acts as a regulator for affairs of the Advocates in Islamabad Capital Territory, admits Advocates to practice before the said High Court and maintains rolls of such Advocates. The functions of the Council also inter-alia include initiating proceedings for misconduct against Advocates on its rolls and award punishment in such cases. That being so, neither the Respondent nor any of its constituents or committees can be Civil Appeal No.1729 of 2019. 7 regarded as persons performing functions in connection with the affairs of the Federation, Provinces or Local Authority within the contemplation of the Article 199 of the Constitution of Islamic Republic of Pakistan. As such we are in no manner of doubt that Respondent No.2 is not amenable to the jurisdiction of the High Court in terms of Article 199 of the Constitution. 8. The next question that needs to be addressed is whether the Supreme Court Bar Association of Pakistan Rules, 1989 are statutory in nature which is yet another reason that correctly prevailed with the learned Division Bench of the High Court in recording a finding that the constitutional jurisdiction cannot be invoked against the Supreme Court Bar Association. This question came up for hearing before a Division Bench of the Lahore High Court in the case of Abdul Sattar Chughtai Malik. v. Pakistan Bar Council through Secretary and another (PLD 2007 Lahore 170). The following excerpt from the said judgment elaborates correctly interprets the law on the subject and is reproduced below: “8. The rules are not statutory in nature, therefore, any violation of the statutes, regulations or rules would not attract the Constitutional jurisdiction of this Court under Article 199 of the Constitution. In this context reference can be made to the cases of Dr. M. Afzal Beg v. University of Punjab and others (1999 PLC (C.S.) 60), Khalid Hussain v. The Chancellor, (Governor of Punjab) and others (NLR 1995 CLJ 219), Muhammad Umar Malik v. The Muslim Commercial Bank through its President, Karachi and 2 others (1995 SCMR 453) and Anwar Hussain v. Agricultural Development Bank of Pakistan and others (PLD 1984 SC 194). 10. The Parliament is the law-making authority. It passes the Acts and empowers the Government under the relevant Act to make Rules for carrying on the business. A statute is the formal “expression” in Civil Appeal No.1729 of 2019. 8 writing of the will of the legislative organ in a State. A ‘Statute’ is a declaration of the law, as it exists or as shall be from the time at which such statute is, to take effect. It is usually called an Act of the Legislature. It expresses the collective will of that body. A Statute is the highest constitutional formulation of law, the means by which supreme legislature, after the fullest deliberation expresses its final will. 11. “Statute law” is defined as the will of the nation, expressed by the Legislature, expounded by the Courts of Justice. If the Parliament is not in session then the laws are enforced through the Ordinances issued by the President or the Governor expressing will of the nation as the case may be. So, the Act passed by the Parliament and the Ordinance issued by the nation would be called the “Statutory Law”. 12. The Rules framed under the powers conferred by an Act are integral part of the Act and these Rules are called Statutory Rules and these are held to be part of the parent Act. It can do anything if within its scope. The Rules or the Bye-Laws made under the Statutes or Act cannot over ride the provisions of other Statute. Neither the Rules control the construction to be placed on the provisions of the Act nor they can enlarge the meaning of the section. The Rules are framed under the Act in aid to construction of ambiguous Statutes. The Rules under the Act shall be made by the Authority, empowered under the Act to frame the Rules or Bye-Laws. No other authority who is not empowered under the Act make the Rules. A Rule Making Body also cannot frame the Rules in conflict with or derogating from the substantive provisions of law or Statute under which the Rules are framed. 14. The Supreme Court Bar Association is a Body, the Organization of lawyers, who are entitled to practise in the Supreme Court of Pakistan it has not been constituted under any Act of the Parliament. It is a non-statutory body, therefore, conditions or rules framed by this body would also be non-statutory rules and having no legal backing. The writ petition under Article 199 of the Constitution against a body, organization not constituted under the law would not be competent.” 9. Learned counsel for the appellant was unable to persuade us to take a contrary view than the one taken by the Islamabad High Court in the impugned judgment, by the Lahore High Court in the afore-noted judgment and by this Court in a number of judgments including Abdul Sattar Chughtai Malik. v. Pakistan Bar Council through Secretary and another (PLD 2007 Lahore 170), Muhammad Tariq Badr Civil Appeal No.1729 of 2019. 9 and another. v. National Bank of Pakistan and others (2013 SCMR 314), Shafique Ahmed Khan and others. v. NESCOM through Chairman, Islamabad and others (PLD 2016 SC 377) and Muhammad Zaman and others. v. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad and others (2017 SCMR 571). Further, the learned counsel for the appellant has not been able to demonstrate or point to any legal, procedural or jurisdictional error, defect or flaw in the reasoning and exposition of law undertaken by the Islamabad High Court in the impugned judgment. After carefully going through the provisions of the Legal Practitioners and Bar Councils Act, 1973 as well as the Supreme Court Bar Association of Pakistan Rules, 1989, we have arrived at the same conclusions as the learned High Court and find no reason to interfere in the impugned judgment. 10. For the afore-noted reasons, we find no merit in this appeal. It is accordingly dismissed with no order as to costs. Chief Justice Judge Judge ISLAMABAD. 28.01.2020. Zubair/* ‘Not Approved For Reporting’

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR MR. JUSTICE IQBAL HAMEEDUR RAHMAN MR. JUSTICE TARIQ PARVEZ CIVIL APPEALS NO.1176 AND 1177 OF 2015 AND CIVIL PETITION NO.1428-L OF 2015 (Against the order dated 11.6.2015 of the Lahore High Court, Bahawalpur Bench passed in C.M.Nos.385, 388/2009 & 2051/2015) Sahabzadi Maharunisa …in C.As.1176 & 1177/2015 Sahibzadi Madhia Abbasi …in C.P.1428-L/2015 …Appellant(s)/Petitioner(s) VERSUS Mst. Ghulam Sughran and another …in C.As.1176 & 1177/2015 Sahibzadi Faroq Kamal Abbasi, etc. …in C.P.1428-L/2015 …Respondent(s) For the appellant(s): (in C.As.1176 & 1177/2015) Mr. Nadeem Iqbal Chaudhry, ASC Qazi Zia Zahid, ASC For the petitioner(s): (in C.P.1428-L/2015) Mr. M. Ozair Chughtai, ASC/AOR For respondents 8 & 12: (in C.As.1176 & 1177/2015) Mr. M. Ozair Chughtai, ASC/AOR For respondents 2(xviii) & 4: (in C.As.1176 & 1177/2015) Mr. Ejaz Ahmed Chaudhry, ASC For respondents 15 & 22: (in C.P.1428-L/2015) Mr. Ejaz Ahmed Chaudhry, ASC Amicus curiae: Malik Muhammad Qayyum, Sr. ASC Ch. Mushtaq Ahmed Khan, Sr. ASC Syed Najam-ul-Hassan Kazmi, Sr. ASC Date of hearing: 19.01.2016 … JUDGMENT MIAN SAQIB NISAR, J.- In the instant matters we are called upon to resolve the proposition as to which is to be considered the “Court which passed the final judgment, decree or order” within the meaning of Section 12(2) of the Code of Civil Procedure, 1908 (CPC) where an aggrieved person shall file such an application. Civil Appeals No.1176 and 1177 of 2015 and Civil Petition No.1428-L of 2015 -: 2 :- In the context of the above the facts of the instant appeals (along with the CPLA) are:- respondents No.1 to 4 (plaintiffs) filed a suit for possession against respondents No.5 to 11 (defendants) assailing therein the validity of a gift mutation No.162 attested on 25.9.1944 by virtue whereof Muhammad Yar, the predecessor-in-interest of the plaintiffs, gifted his property (suit property) in favour of Ahmad Yar, his brother. The suit was initiated on 18.10.1965 and was partly decreed on 11.6.1968. Both the parties being aggrieved of the above decree, challenged the same through appeals, the plaintiffs filed RFA No.11/1968, while the defendants instituted RFA No.27/1968. The appeal filed by the plaintiff was partly allowed by the learned High Court vide judgment dated 24.3.1986, but that of defendants was dismissed through the same judgment. The defendants filed CA No.193/1986 and CP No.73/1986, whereas the plaintiffs filed CP No.473/1986, before this Court, all challenging the judgment dated 24.3.1986, while one Murad Bibi and Surriya Begum also filed applications to be impleaded as parties before this Court in the abovementioned appeal and/or petitions but were turned down with the observation that they may avail the remedy before the appropriate forum in appropriate proceedings. Thereafter, the appeal and petitions were dismissed by this Court vide judgment dated 26.6.1991. 2. Aggrieved of the said judgments and claiming those to have been procured by the respondents through fraud and misrepresentation, the appellant (in CAs No.1176 and 1177/2015) filed applications under Section 12(2) of the CPC vide CMs No.385 and 388/2009 in RFAs No.11 and 27/1968 respectively, and the petitioner (in CP No.1428-L/2015) filed a similar application through CM Civil Appeals No.1176 and 1177 of 2015 and Civil Petition No.1428-L of 2015 -: 3 :- No.2051/2015 in RFA No.11/1968. These applications have been dismissed vide the impugned judgment dated 11.6.2015 holding that the application before the High Court is not competently filed, rather in the light of the law laid down by this Court in Nasrullah Khan and others Vs. Mukhtar-ul-Hassan and others (PLD 2013 SC 478) the appellate forum is the Supreme Court of Pakistan. Leave was granted on 6.11.2015 to consider whether the applications under Section 12(2) of the CPC were rightly dismissed on the grounds that they were only competent before this Court and also to consider the true import of the case of Nasrullah Khan (supra); the order is reproduced below:- “Learned counsel for the petitioner states that the final judgment in the instant matter had been passed by the learned High Court in its appellate jurisdiction, and when such judgment and decree was assailed before this Court, it was kept intact. Therefore, the view set out by the learned High Court while dismissing the application of the petitioner under Section 12(2) CPC being not maintainable in light of the law laid down in Nasrullah Khan and others Vs. Mukhtar-ul-Hassan and others (PLD 2013 SC 478) is not correct as the rule of merger is not attracted to cases where judgments of the learned High Court have simply been kept intact and no modification or reversal has taken place. In such an eventuality the final judgment and order shall be that of the learned High Court. Leave is granted to consider the above. As a short point is involved, let this matter be listed for hearing within six weeks. We also appoint M/s Malik Muhammad Qayyum, Syed Najam-ul- Hassan Kazmi and Ch. Mushtaq Ahmed Khan, learned Sr. ASCs as amicus curiae to assist the court on the points raised; and notice be issued to them accordingly.” Civil Appeals No.1176 and 1177 of 2015 and Civil Petition No.1428-L of 2015 -: 4 :- 3. In order to make this opinion concise we are not stating in detail the arguments/pleas raised by the learned counsel for the parties and learned amicus, which (pleas) are reflected in the reasons assigned herein. However it may be stated that, in brief, the argument of the learned counsel(s) for the appellants is that the principle of merger is applicable to such application [under Section 12(2) of the CPC] but only where a judgment, decree or order passed by a court when appealed against or challenged in the revisional jurisdiction has been set aside, reversed, modified etc.; however where it (judgment etc.) has simply been affirmed by the higher forum, the rule of merger is not attracted and the final judgment, decree or order shall remain that of the court which passed the judgment etc. before its affirmation. This according to the learned counsel shall be the rule applicable at all the levels of adjudication including the Supreme Court. On the contrary, the learned counsel for the respondents have pressed for the application of the rule of merger even to the judgments etc. which have been affirmed in appeal/revision though subject to certain exceptions which shall be highlighted in the course of this opinion. This is also the position of all the three amicus, who have forcefully added that the rule of merger should also be extended and made applicable to the decisions of affirmation passed by this Court but with the exception that when it (this Court) decides a matter on merits after grant of leave or while deciding an appeal directly filed before the Supreme Court under Article 185(2) of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution), certain exceptions to the rule of merger will apply. 4. Heard. Before proceeding to examine the proposition and provide an answer thereto, we find it expedient to explain the concept Civil Appeals No.1176 and 1177 of 2015 and Civil Petition No.1428-L of 2015 -: 5 :- of merger by referring to the definition of the words ‘merge’ and ‘merger’. According to Chambers English Dictionary (7th Edition), ‘merge’ means “to dip or plunge; to cause to be swallowed up or absorbed in something greater or superior: to cause to coalesce, combine, or amalgamate – to be swallowed up or lost: to coalesce: to lose identity in something else”. ‘Merger’ has been assigned the meaning “a sinking of an estate, title, etc., in one of larger extent or of higher value: a combine, an absorption; or an act or process of margining”. The Oxford English Dictionary (1933) defines ‘merge’ as “to dip, plunge; to sink or extinguish (a lesser estate, title, etc.) in one which is greater or superior. Hence gen., to cause (something) to be absorbed into something else, so as to lose its own character or identity; to sink or make to disappear” and ‘merger’ as “extinguishment of a right, estate, contract, action, etc, by absorption in another”. The definition of ‘merge’ provided in Corpus Juris Secundum (1936) is “to sink or disappear in something else; to be lost to view or absorbed into something else; to become absorbed or extinguished; to be combined or be swallowed up; to lose identity or individuality; to sink the identity or individuality of; to cause to disappear; to make to disappear in something else; to cause to be absorbed or engrossed” and ‘merger’ is “absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality; in merger there is a carrying on of the substance of the thing, except that the substance is merged into, and becomes a part of, a separate thing with a new identity”. The word ‘merge’ has been explained in The Constitution of India by Prof. S. R. Bhansali as “to sink or disappear in something else; to become absorbed or extinguished, to be combined or be swallowed up”, and ‘merger’ as “the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality”. On account of Civil Appeals No.1176 and 1177 of 2015 and Civil Petition No.1428-L of 2015 -: 6 :- the definitions above, it is obvious that ‘to merge’ or ‘merger’ is where something is absorbed into another and/or has coalesced into another identity by losing its own original character. In the Nasrullah Khan case (supra) we have held that merger of a judgment/decree means “that it is integrated, implanted, inculcated, infixed and instilled into the decree of the higher forum and becomes the decree/order of the later forum for all legal intents and implications”. It is relevant to mention here that according to settled law, an appeal (in particular) is a continuation of the original proceedings and when an appeal is filed the entire case is reopened for examination both on the question(s) of fact and the points of law involved in any lis (Note: a second appeal, however, is subject to the conditions laid down in Sections 100 and 102 CPC). Be that as it may, the legal position and the concept of merger in relation to an appeal has been considered and authoritatively resolved in the judgment reported as F.A. Khan Vs. The Government of Pakistan (PLD 1964 SC 520). The facts of the case were:- that an employee of the Land Customs Department was dismissed from service vide order dated 15.8.1950 passed by the Collector of Land Customs. He filed an appeal before the Central Board of Revenue (in the departmental hierarchy) which was dismissed on 7.5.1952. On 25.6.1958 he filed a suit for declaration challenging the order of his dismissal and the one passed in appeal. The defendant (customs department) took up the preliminary objection that such suit was barred as per Article 120 of the Limitation Act, 1908 (Limitation Act) because the dismissal order dated 15.8.1950 was being challenged beyond the period of six years. Considering the above legal point, the learned Bench of this Court found:- “…in respect of the nature of an appeal the following propositions may be regarded as established: Civil Appeals No.1176 and 1177 of 2015 and Civil Petition No.1428-L of 2015 -: 7 :- (i) when an appeal is filed the matter becomes sub- judice and is reheard by the appellate Court which does not Act merely as a Court of error; (ii) after there has been an appeal even though an appellate Court simply affirms the order of the original Court the only decree or order in existence is the order of the appellate Court; (iii) the original and appellate proceedings are steps in one proceedings. …the passing of an order subject to appeal will not necessitate the filing of a suit for it is only a step in a proceeding and not a final order. In any case once an appeal is filed the matter becomes sub-judice and when the appellate authority passes an order the order of the original authority disappears and merges in the order of the appellate authority so that there remains in existence only the appellate order and this order can be made the basis of a suit.” (Emphasis supplied by us) Thus while taking into account the date of dismissal of the appeal as the relevant date for the purposes of limitation in F. A. Khan (supra) the suit was held to be within time, meaning thereby that the rule of merger was settled and applied in the context of limitation (Note: It may be relevant to mention that in this judgment considerable case law was considered while enunciating the law that the rule of merger shall be attracted). However this Court in the judgment reported as Joydeb Agarwala Vs. Baitulmal Karkhana Ltd. (PLD 1965 SC 37) took a different view that:- “Certain contentions raised by Mr. T. H. Khan may be very briefly disposed of. He contended that the trial Court lacked jurisdiction to interfere with the decree because it had become final through being upheld in appeal in the High Civil Appeals No.1176 and 1177 of 2015 and Civil Petition No.1428-L of 2015 -: 8 :- Court and not having been appealed against further, and secondly, that only the High Court could alter the decree which had become merged in the decree of the High Court. The mere fact of the decree having become immune to further appeal by the dismissal of the appeal in the High Court and the lack of further appeal does not render the decree a decree of any other Court except that of first instance. No modification was made in the decree by the High Court, and the argument of merger is rendered of no weight by the consideration that in fact the High Court rejected the appeal”. The facts of the case were:- that a decree for specific performance in favour of the plaintiff passed by the Trial Court attained finality at the level of the High Court in appeal because the defendant’s appeal was dismissed subsequent to which the plaintiff filed an application for amendment of the decree, which (matter) finally came before this Court wherein it was held as quoted above, that the rule of merger shall not apply. It is very important to note that the earlier judgment in F. A. Khan (supra) for whatever reason eluded the attention of this Court while rendering the opinion in Joydeb Agarwala (Note: the Court also hardly took into account any previous case law on the subject, which was referred to in F.A. Khan’s case). In the case reported as Maluvi Abdul Qayyum Vs. Syed Ali Asghar Shah and 5 others (1992 SCMR 241) wherein the Court was called upon to resolve the proposition about the application of the rule of merger in relation to appeals and also to the revisional jurisdiction, the two verdicts of the Court (supra), F.A. Khan and Joydeb Agarwala, came up for examination and further case law on the subject was exhaustively considered and this Court came to a definite and authoritative conclusion that the rule of merger shall be Civil Appeals No.1176 and 1177 of 2015 and Civil Petition No.1428-L of 2015 -: 9 :- attracted to the case(s) of affirmation of decisions in appeal/revision; the view of the Court was expressed in the following words:- “It appears that in holding that the period of limitation for execution of the decree commenced from the date of the decision by the Appellate Court, the rule that the decree of the Court of first instance, merged into the decree of Appellate Court, which alone can be executed, was not present to the mind of the learned Judge. It is to be remembered that till such time, an appeal or revision from a decree is not filed, or such proceedings are pending but no stay order has been issued, such decree remains capable of execution but when the Court of last instance passes the decree only that decree can be executed, irrespective of the fact, that the decree of the lower Court is affirmed, reversed or modified.” Additionally:- “In Lala Brij Narain v. Kunwar Tejbal Bikram Bahadur (37 I.A. 70) the Privy Council has taken the view that the trial Court ceases to have the jurisdiction to amend decree, when it has been affirmed by the Appellate Court. This would also strengthen the rule that after affirmation of the decree of the trial Court, the decree in existence is only that of the Appellate Court. This view has generally been followed in the sub-continent…” As regards the revisional jurisdiction it was opined:- “The same object is achieved when a revision from the decree of the lower Court is accepted. Thus in a way revisional jurisdiction partakes of appellate jurisdiction. A case on this point is the one decided by a Full Bench of Madras High Court in Chappan v. Moidin Kutti (ILR 1899 Madras 68) where Subramania, J expressed Civil Appeals No.1176 and 1177 of 2015 and Civil Petition No.1428-L of 2015 -: 10 :- the view that appellate jurisdiction includes revisional powers.” (Emphasis supplied by us) Furthermore:- “9. These judicial announcements leave no room for doubt that for the purpose of execution the rule of merger equally applies to the decree passed in exercise of revisional jurisdiction. This issue may also be examined from another angle. Take the case of a suit, which is dismissed by the trial Court and with this dismissal the First Appellate Court does not interfere, but it is decreed by the revisional Court. There should be no doubt that the decree of the Court of revision can well be executed. So far as executability of a final decree is concerned, does it make any difference, if the decree of the First Appellate Court is affirmed by the revisional Court?” It is clear from the ratio of the noted judgment that an exception was taken to the law laid down in Joydeb Agarwala and the law laid down in on F.A. Khan’s case was endorsed; rightly so, because in the Joydeb Agarwala case the earlier verdict i.e. F.A. Khan and the settled law on the rule of merger (note:- referred to and relied upon in F.A. Khan) was not taken into consideration and therefore the said decision (Joydeb Agarwala case) with due deference, is per incuriam. We have not come across better decisions in our jurisdiction explaining the rule of merger than F.A. Khan and Maulvi Abdul Qayyum cases. This rule has also been reiterated in Nasrullah Khan’s case (supra), wherein it has been specified as under:- “From the above it is clear that for all legal purposes, it is the final decree/order of the last Court in the series, even if such decree etc. be of affirmation, which has to be executed and should be considered and Civil Appeals No.1176 and 1177 of 2015 and Civil Petition No.1428-L of 2015 -: 11 :- treated to be the final judgment/decree/order in terms of Section 12(2) CPC for approaching the forum. Thus, notwithstanding the reversal or modification of the decree/order, if the decree/order of a forum below, which has been affirmed by the higher forum on merits, both on the points of the facts and the law involved therein, it shall be that decree/order, which attains the status of the final decree/order etc. within the purview of section 12(2), C.P.C. It is so because the higher forum has not only- endorsed the point(s) of fact and law and has agreed with the reasoning and conclusion of the lower forum, but may be, has upheld the decision(s) challenged before it, by substituting and supplying its own reasons and by substantially doing away with the reasoning of the decision(s) challenged before it. Thus, it would be ludicrous to conceive and hold that the questions of facts and law which have been finally approved, endorsed, affirmed and settled by the higher forum should be allowed to be examined, annulled and obliterated by a forum below, whose decision stands affirmed in the above manner. Therefore, we are of the considered view that the impugned judgment in this case has been rightly founded on the principle of merger; however before parting it may be observed that in the case Khawaja Muhammad Yousaf (supra), an exception has been taken to the rule of merger in relation to the apex Court, particularly in respect of those judgments/orders which are affirmed by this Court in the sense that leave has been refused.” (Emphasis supplied by us) In the verdict of this Court reported as Muhammad Yousaf through Legal Heirs and others Vs. Noor Din and others (PLD 2002 SC 391) it has been held as under:- “4. The law on the subject now stands clarified and settled in view of the dictum laid down in Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas Civil Appeals No.1176 and 1177 of 2015 and Civil Petition No.1428-L of 2015 -: 12 :- and others 1999 SCMR 1516 that if the Supreme Court merely reaffirms a judgment or order of a High Court by refusing leave to appeal the final judgment in terms of section 12(2), C.P.C. will be of the High Court and not of the Supreme Court and if the Supreme Court reverses a judgment of a High Court and records a finding on question of fact or law contrary to what was held by the High Court, the final judgment or order would be of the Supreme Court for the purpose of section 12(2), C.P.C. The same view was reiterated in Abid Kamal v. Mudassar Mustafa and others 2000 SCMR 900. 5. Adverting to the case in hand we find that by dismissing the petition for leave to appeal this Court had affirmed and not reversed the judgment of the Lahore High Court. The final judgment in terms of section 12(2), C.P.C. is, therefore, of the High Court and as such there can be no dispute with the proposition that jurisdiction to entertain and decide the application under section 12(2), C.P.C. moved by the petitioners vests exclusively in the Lahore High Court.” (Emphasis supplied by us) We may now consider the important case law from the Indian jurisdiction, wherein the concept and the rule of merger has been elucidated and applied i.e. in Commissioner of Income-Tax, Bombay Vs. M/s Amritlal Bhogilal and Co. (AIR 1958 SC 868) it was held that:- “There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the Civil Appeals No.1176 and 1177 of 2015 and Civil Petition No.1428-L of 2015 -: 13 :- appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement…” In Collector of Customs, Calcutta Vs. East India Commercial Co. Ltd., Calcutta and others (AIR 1963 SC 1124), the rule was laid down that:- “…though it may be that the appellate authority has merely confirmed the order of the original authority and dismissed the appeal. It is this principle, viz., that the appellate order is the operative order after the appeal is disposed of, which is in our opinion the basis of the rule that the decree of the lower court merges in the decree of the appellate court, and on the same principle it would not be incorrect to say that the order of the original authority is merged in the order of the appellate authority whatsoever its decision-whether of reversal or modification or mere confirmation.” In Lakshminarayan Guin & Ors Vs. Niranjan Modak [(1985) 1 SCC 270] the court concluded:- “It is well settled that when a trial court decrees a suit and the decree is challenged by a competent appeal, the appeal is considered as a continuation of the suit, and when the appellate decree affirms, modifies or reverses the decree on the merits, the trial court decree is said in law to merge in the appellate decree, and it is the appellate decree which rules.” In Kunhayammed and others Vs. State of Kerala and another (AIR 2000 SC 2587) the Court has lucidly set out the concept of merger, its logic, scope and application and concluded as under:- Civil Appeals No.1176 and 1177 of 2015 and Civil Petition No.1428-L of 2015 -: 14 :- “To sum up our conclusions are :- (i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the sub-ordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.” But considering whether the rule of merger shall be applicable where leave has been refused by the Supreme Court it was held:- “(iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter. (Emphasis supplied by us) (iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed. Civil Appeals No.1176 and 1177 of 2015 and Civil Petition No.1428-L of 2015 -: 15 :- (v) If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the Court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the Court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties. (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.” This judgment has been affirmed and the view set out therein has been fully endorsed and acknowledged in a later judgment from the Indian jurisdiction reported as Bakshi Dev Raj and Anr. Vs. Sudheer Kumar (AIR 2011 SC 3137). 5. From the ratio of the case law cited above (from both jurisdictions), it is clear that the doctrine of merger has been duly applied to the reversal and modification cases and also to all those cases in which the judgment etc. of a lower forum has been affirmed in appeal or revision by a higher forum(s) (Note: though there are certain exceptions to this rule which shall be specified in the concluding part of this opinion). We may like to add here that the rule of merger shall also extend to the Civil Appeals No.1176 and 1177 of 2015 and Civil Petition No.1428-L of 2015 -: 16 :- writ jurisdiction of the learned High Court(s) where the decisions of the lower fora, such as Tribunals and Special Courts etc. when challenged have been affirmed by the court in exercise of its constitutional jurisdiction. 6. The learned counsel(s) for the appellants in support of their contentions, cited certain judgments of this Court, which (case law) according to them are directly on the subject of 12(2) qua the forum where such application should be filed. The learned counsel for the respondents and the learned amicus countered that such dicta do not impinge upon the rule of merger which is unequivocally attracted to the decisions of the higher forum affirming the judgments of the lower fora and that those cases are distinguishable or fall within the exception(s) to the rule of merger. The first judgment cited is Government of Sindh and another Vs. Ch. Fazal Muhammad and another (PLD 1991 SC 197). The facts of the case were:- that the respondent of the case (Ch. Fazal Muhammad) filed an application under Section 14 of the Arbitration Act, 1940 against the appellant (Government of Sindh) and after notice to the appellant and upon hearing it, the award was made rule of the court; appeal of the appellant was dismissed for non-prosecution; the restoration application also was not pursued and thus dismissed. Thereafter an application under Section 12(2) of the CPC was filed perhaps before the appellate court (Note: as this is not quite clear from the facts narrated in the judgment) which was dismissed throughout, and when the matter came to this Court the focal point was whether in such circumstances the application was maintainable, but there was no such issue about the forum where such application should be filed. The Court held:- Civil Appeals No.1176 and 1177 of 2015 and Civil Petition No.1428-L of 2015 -: 17 :- “10. It will be seen from the above that the appellants had opportunity to take all the objections to the award and if they did not plead all the facts and raised all the objections to the award which were available to them for an application under sections 30 and 33 of the Arbitration Act they have to blame themselves. Under Section 12(2), C.P.C. a party can question the validity of a judgment, decree or order on the plea of fraud etc. In this case the challenge is not to judgment, decree or order but to the award itself. This could be done only under section 30 or 33 of the Arbitration Act. Even a review of the judgment, decree or order could not be sought because if new or important matter was discovered the appellant had to satisfy, in order to succeed, that they had exercised due diligence and in spite of that the facts pleaded in the application under Section 12(2) were not within their knowledge. 12. Accordingly, an application under section 12(2), C.P.C. also was not maintainable.” It is thus noticed that the legal point involved herein was neither in issue nor was dilated upon and resolved by this Court in the judgment supra. In Secretary, Ministry of Religious Affairs and Minorities and 2 others Vs. Syed Abdul Majid (1993 SCMR 1171) the factual backdrop was:- that the transfer of the property (in question) as evacuee in favour of the respondent (of the case namely Abdul Majid) by the Settlement Department was annulled by the Chairman Evacuee Trust Property (CETP) declaring it to be Evacuee Trust Property. This order was challenged by the respondent in the constitutional jurisdiction of the High Court and he succeeded. The leave application before this Court by Secretary Ministry of Religious Affairs (the Secretary) was dismissed as being barred by time. Thereafter Civil Appeals No.1176 and 1177 of 2015 and Civil Petition No.1428-L of 2015 -: 18 :- the Secretary moved an application under Section 12(2) of the CPC before the High Court which was disallowed; the moot points before this Court in the case were two fold, one about the forum having jurisdiction in the matter and another a legal issue about the application of MLR 57. The Court on the first point, which is relevant for this judgment categorically held:- “In this connection the next point for consideration is whether in view of the fact that this Court had dismissed civil petition for leave to appeal filed by the appellants against the judgment of the High Court, application under section 12(2), C.P.C. could be filed in the High Court or in the Supreme Court. As held in the Government of Sindh and another v. Ch. Fazal Muhammad PLD 1991 SC 197, such application can be filed in the Court which passed the final order. The final order in the present case was passed by the High Court and therefore the application filed by the appellants there was competent”. (Emphasis supplied by us) In Khawaja Muhammad Yousaf Vs. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others (1999 SCMR 1516) the allotment of the land in favour of the appellant of the case (Khawaja Muhammad Yousaf) as a displaced person from the State of Jammu and Kashmir which was mutated in his name by the Tehsildar was set aside by the Collector in appeal; this order was reversed by the Additional Commissioner on appeal of Kh. Yousaf. Against the order of the Additional Commissioner, the Federal Government went in revision before the Member, Board of Revenue which was rejected on 25.2.1988; the constitutional petition of the Government was dismissed by the learned High Court vide Civil Appeals No.1176 and 1177 of 2015 and Civil Petition No.1428-L of 2015 -: 19 :- judgment dated 15.8.1989. This judgment was challenged by some private person(s) by filing applications under Section 12(2) of the CPC before the High Court on the ground(s) that the allotment of Kh. Yousaf is the result of fraud etc. and, therefore, the said judgment be set aside. The applications were allowed and the judgment dated 15.8.1989 was set aside; leave was granted by this Court inter alia to “examine the legal question as to, whether an application under section 12(2), C.P.C. could have been filed by the private respondents before the High Court”. In order to answer the above question, the Court was required to determine “which of the judgments/orders can be treated as a final judgment/order in terms of subsection (2) of section 12 C.P.C.” The Court however on examination of the two earlier judgments of Government of Sindh and Secretary, Ministry of Religious Affairs approved the latter dictum while concluding:- “In our view, the law enunciated in the above case of Secretary, Ministry of Religious Affairs and Minorities and 2 others v. Syed Abdul Majid (supra) reflects the correct legal position. If this Court merely reaffirms a judgment or order of a High Court by refusing leave, the final judgment in terms of subsection (2) of section 12, C.P.C. will be of the High Court and not of the Supreme Court. However, if the Supreme Court, reverses a judgment of a High Court and records a finding on question of fact or law contrary to what was held by the High Court, in that event the final judgment or order would be of the Supreme Court for the purpose of subsection (2) of section 12, C.P.C. In this view of the matter, the final judgment in the case in hand was of High Court as it reversed the findings recorded by the forums provided under the Settlement Law”. In Abid Kamal Vs. Muddassar Mustafa and others (2000 SCMR 900) the petitioner who had approached this Court directly under Civil Appeals No.1176 and 1177 of 2015 and Civil Petition No.1428-L of 2015 -: 20 :- Section 12(2) during the course of hearing of the matter, while accepting Secretary, Ministry of Religious Affairs (supra) as the valid law laid down by this Court sought the permission of the Court to withdraw his petition with the observation that the court seized of the matter (which he would approach) should sympathetically consider the condonation of delay with regard to the time spent pursuing his remedy before this Court, the Court held:- “…In both the cases i.e. 1993 SCMR 1171 and 1999 SCMR 1516 the ratio decidendi is that if Supreme Court merely affirms judgment or order of High Court by refusing leave the final judgment in terms of section 12(2), C.P.C. will be of the High Court and not of the Supreme Court, and if, however, Supreme Court reverses a judgment of a High Court and records a finding on question of fact or law contrary to what was held by the High Court, in that event the final judgment or order would be of the Supreme Court for the purposes of section 12(2), C. P. C.. 4. In the case in hand as well this Court had refused to grant leave to respondent Muddassar Mustafa and others, therefore, keeping in view these facts we are of the opinion that application under section 12(2), C.P.C. subject to all just exceptions will be competent before the Court which had finally decided the appeal.” (Emphasis supplied by us) In Bakhtiar Ahmed Vs. Mst. Shamim Akhtar and others (2013 SCMR 5) while the question of limitation in the context of Section 48 of the CPC was under consideration and the rule of merger was taken into account; it was held that mere filing of leave petition before this Court and the decision thereupon shall not attract the rule of merger Civil Appeals No.1176 and 1177 of 2015 and Civil Petition No.1428-L of 2015 -: 21 :- and extend the period of limitation. In this regard the relevant portion reads as:- “There being no, statutory remedy of appeal or revision available against said decree and the only remedy available was filing a petition for leave to appeal before this Court, which is a constitutional court, therefore, unless the operation of the impugned decree is suspended or the petition is converted in to an appeal the petitioner cannot presume that the period of limitation has been clogged. Mere filing of petition before this court would not automatically enlarge the time of filing the execution application. Needless to mention here that in case relief is granted by this Court after allowing the appeal with leave of the Court then in the said eventuality the order of this Court would merge into order of the lower forums as such the period of limitation would start from the order of this Court”. (Emphasis supplied by us) 7. From the analysis of the above case law, it transpires that in none of these judgments has the rule of merger been taken into consideration (Note: exception in Bakhtiar Ahmed case, but that too in a different context) in the context of the provisions of Section 12(2) of the CPC. Rather such principle was conceived and applied in clear terms in Nasrullah Khan’s case (supra) for the first time which enunciation of law is in line with the rule of merger as defined, perceived and applied in our jurisprudence and also the Indian jurisprudence (Note: all the definitions/dicta have been cited in paragraphs No.4 to 6 of this opinion). Moreover in none of the judgments that we have considered has it been held that the rule of merger shall not apply to the decisions passed in affirmation in appeal/revision/writ. All the later judgments, subject to their own peculiar features as highlighted Civil Appeals No.1176 and 1177 of 2015 and Civil Petition No.1428-L of 2015 -: 22 :- above, have followed the ratio of the judgment reported as Secretary, Ministry of Religious Affairs (supra). The distinguishing feature of the law laid down therein is that the Court is inclined to apply the rule of merger to the affirmation decision in appeal when the same is on merits with the proviso that the said doctrine shall not be attracted where the decision of the lower forum has been simply upheld in the manner that this Court had declined to interfere with such decision, through the refusal of leave to appeal. It is thus clear that where a matter has been heard and decided by this Court in appeal and the verdict of the lower forum has been affirmed on merits the rule of merger shall duly apply, and thus the application under Section 12(2) of the CPC subject to the exceptions mentioned in the concluding part of this judgment can be competently filed before this Court. For the plea raised by the appellants’ side that in view of Order I Rule 5 of the Supreme Court Rules, 1980 (Rules) the provisions of CPC are not applicable to the proceedings before the Supreme Court, suffice it to say that there is no bar upon the Court to apply and resort to the principles of CPC and thus it is within the absolute prerogative and discretion of this Court to entertain and decide such an application (under Section 12(2) CPC). 8. In order to sum up the discussion on the subject, we find that the following are the situations (with certain exceptions) which would be relevant to the determination of the final court within the purview of Section 12(2) of the CPC:- (i) Where an appeal/revision/writ is accepted, the judgment etc. is reversed, varied, modified or affirmed; (ii) Where an appeal/revision/writ is not disposed of on merits but on some other grounds; Civil Appeals No.1176 and 1177 of 2015 and Civil Petition No.1428-L of 2015 -: 23 :- (iii) Where direct appeals or those after the grant of leave are allowed or dismissed and the judgment etc. of the learned High Court(s)/Tribunals or special forums below has been varied, altered, reversed or affirmed by this Court; (iv) Where the petition(s) for leave to appeal under the Constitution is declined; 9. With respect to these four situations, our conclusion is as under:- (i) In the cases where the remedy of appeal/revision is provided against a judgment etc. or a remedy of writ is availed, the appellate/revisional/constitutional forum records reasons on the consideration of the issues of law and/or fact the judgment etc. of the subordinate court/forum will merge into the decision of the appellate court etc. irrespective of the fact that such judgment reverses, varies or affirms the decision of the subordinate court/forum and its decision will be operative and capable of enforcement on the principle of merger, the application under Section 12(2) of the CPC will be maintainable before the appellate/revisional/constitutional forum (High Court, District Court, Tribunal or Special Court as the case may be); (ii) In the situation mentioned at serial No.(ii) above, there are certain exceptions to the rule of merger which (rule) shall not apply, where an appeal etc. has been dismissed:- (i) for non-prosecution; (ii) for lack of jurisdiction; (iii) for lack of competence/maintainability; (iv) as barred by law; (v) as barred by time; (vi) withdrawal of the matter by the party; (vii) for lack of locus standi; (viii) decided on the basis of a compromise, if the very basis of the compromise by the party to the lis or even a stranger showing prejudice to his rights is not under challenge on the ground of fraud; (ix) is rendered infructuous or disposed of as having borne fruit; (x) abatement; (xi) where the writ is dismissed on the ground of availability of alternate remedy; (xii) where the writ is dismissed on the point of laches. It may be mentioned that such exceptions shall also be attracted to the Civil Appeals No.1176 and 1177 of 2015 and Civil Petition No.1428-L of 2015 -: 24 :- decision(s) of the Supreme Court, where applicable. However where the case falls within the noted exceptions the forum for an application under Section 12(2) of the CPC is the one against whose decision the matter has come and been disposed of in the above manner by the higher forum; (iii) In the cases of reversal or modification of the judgment of the High Court(s), Tribunal(s) or Special Courts before this Court, or those affirmed in appeal (where the matter does not fall within the exceptions) the judgment of the Supreme Court shall be deemed to be final for moving an appropriate application on the plea of lack of jurisdiction, misrepresentation and fraud; (iv) In the cases where leave is declined by this Court, the judgment etc. of the lower fora will remain intact and final and will not merge into the leave refusing order, for the purposes of an application under Section 12(2) of the CPC which can only be filed before the last forum i.e. the learned High Court(s) if the matter has been decided in the appellate/revisional/writ jurisdiction by the said court, or if the matter has come to this Court directly for leave from a Tribunal/Special Court (see Article 212 of the Constitution). However where the petition for leave to appeal has been dismissed with detailed reasons and a thorough decision of the questions of law and fact has been made, the judgment of the High Court(s)/Tribunal will though not merge into the order of the Supreme Court yet in order to avoid a ludicrous situation that once a question of law and fact has been elaborately and explicitly dealt with by this Court in the leave refusing order and the court below may not be in a position to adjudicate upon those points without commenting on the order/reasons of the Supreme Court and to reopen the matter, an application in the nature of Section 12(2) of the CPC can be filed before this Court, leaving it to the absolute discretion of this Court to either decide such application itself or send the matter to the lower fora for the decision; 9. The above are the detailed reasons for the short order of even date whereby these cases were dismissed, which reads as:- Civil Appeals No.1176 and 1177 of 2015 and Civil Petition No.1428-L of 2015 -: 25 :- “For the reasons to be recorded later, we do not find any merit in these cases which are hereby dismissed.” However before parting we may express our appreciation for the valuable input and assistance provided by all the three amicus. JUDGE JUDGE JUDGE Islamabad, the 19th January, 2016 Approved For Reporting Waqas Naseer/*

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{'id': 'C.A.176_2015.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa, CJ Mr. Justice Mushir Alam Mr. Justice Manzoor Ahmad Malik Mr. Justice Sardar Tariq Masood Mr. Justice Ijaz Ul Ahsan Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Syed Mansoor Ali Shah Civil Appeal No. 1772 of 2008 and Civil Miscellaneous Application No. 1990 of 2015 (Against the judgment dated 14.07.2008 passed by the High Court of Sindh, Karachi in Constitution Petition No. D-1372 of 2008) Moinuddin, etc. …Appellants versus The State, etc. …Respondents Civil Petition No. 1708 of 2011 (Against the judgment dated 09.06.2011 passed by the Lahore High Court, Lahore in Writ Petition No. 6915 of 2011) Abdul Rehman …Petitioner versus The State, etc. …Respondents Civil Appeal No. 253 of 2015 (Against the judgment dated 16.03.2015 passed by the Lahore High Court, Lahore in Writ Petition No. 21957 of 2012) Muhammad Qaiser alias Billa …Appellant versus The learned District & Sessions Judge/Judge ATC No. 1, Faisalabad, etc. …Respondents Criminal Petition No. 988 of 2015 Civil Appeal No. 1772 of 2008, etc. 2 (Against the judgment dated 29.01.2015 passed by the High Court of Sindh at Sukkur in Criminal Revision Application No. 40-D of 2014) Waryam, etc. …Petitioners versus The State …Respondent Criminal Appeal No. 391 of 2015 (Against the judgment dated 13.08.2015 passed by the Lahore High Court, Multan Bench, Multan in Criminal Revision No. 267 of 2015) Zafar Hussain, etc. …Appellants versus The State, etc. …Respondents Criminal Appeal No. 19 of 2018 (Against the judgment dated 27.01.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No. 98-J of 2014, Criminal Appeal No. 324 of 2014, Criminal Appeal No. 337 of 2014 an Capital Sentence Reference No. 11-T of 2014) Kalay Khan …Appellant versus The State …Respondent In attendance: Mr. Shahid Azeem, ASC Mr. Javed Iqbal Raja, ASC Mr. Burhan Moazam Malik, ASC Mian Pervaiz Hussain, ASC Syed Tayyab Mehmood Jaffari, ASC Mr. Muhammad Ishtiaq Ahmed Raja, ASC Raja Abdul Ghafoor, AOR Malik Ghulam Mustafa Kandwal, ASC Mr. Kamran Murtaza, ASC Mr. Abid Hussain Saqi, ASC Mr. Muhammad Sadiq Baloch, ASC Ch. Munir Sadiq, ASC Mr. Zulfiqar Khalid Maluka, ASC Mr. Khadim H. Sandhu, ASC Civil Appeal No. 1772 of 2008, etc. 3 On Court’s Notice: Mr. Sajid Ilyas Bhatti, Deputy Attorney-General of Pakistan Mr. Tariq Mehmood Jehangiri, Advocate-General, Islamabad Mr. Ahmed Awais, Advocate- General, Punjab Ch. Faisal Farid, Additional Advocate-General, Punjab Mr. Ahmed Raza Gillani, Additional Prosecutor-General, Punjab Barrister Shabbir Hussain Shah, Additional Advocate-General, Sindh Mr. Salim Akhtar, Additional Prosecutor-General, Sindh Mr. Zahid Yousaf Qureshi, Additional Advocate-General, Khyber Pakhtunkhwa Syed Baqar Shah, State Counsel, Balochistan Mr. Ayaz Khan Swati, Additional Advocate-General, Balochistan Date of hearing: 02.04.2019 JUDGMENT Asif Saeed Khan Khosa, CJ.: The offence of ‘terrorism’ defined in section 6 and punishable under section 7 of the Anti- Terrorism Act, 1997 is not a compoundable offence but in many cases the offence of terrorism is committed simultaneously with commission of some other offence and such other coordinate offence may sometimes be a compoundable offence. The effect of compounding of such coordinate compoundable offence upon the non-compoundable offence of terrorism or some other non- compoundable offence is a question which has been referred to the present Larger Bench for resolution. The circumstances in which this question has arisen in the present cases are briefly narrated as follows: Civil Appeal No. 1772/2008 (Moinuddin and another v The State and others) The appellants were convicted and sentenced to death under section 302(a), PPC read with section 7 of the Anti-Terrorism Act, 1997 besides having been convicted and sentenced for some other Civil Appeal No. 1772 of 2008, etc. 4 offences. The appellants’ appeal was dismissed by the High Court and their appeal before this Court was also dismissed. The appellants then filed a Criminal Suo Motu Review Petition before this Court which too was dismissed and their Mercy Petition was subsequently dismissed by the President of Pakistan. Later on the parties entered into a compromise but the same was disallowed by the trial court and the appellants’ Constitution Petition against the said order was dismissed by the High Court which order was challenged before this Court and the matter was referred to the present Larger Bench to determine whether a compromise in respect of the offence of murder can be treated as a mitigating circumstance for reducing the sentence of death under section 7 of the Anti-Terrorism Act, 1997 to imprisonment for life at such a stage or not. Through an order passed on 22.04.2015 in Civil Miscellaneous Application No. 1990 of 2015 this Court had suspended execution of the appellants’ sentences of death during the pendency of their main appeal. Civil Petition No. 1708 of 2011 (Abdul Rehman v The State and another) The petitioner was tried by the Anti-Terrorism Court, Sargodha and was convicted and sentenced to death under section 302(b), PPC as well as under section 7 of the Anti-Terrorism Act, 1997 besides having been convicted and sentenced for some other offences. The petitioner’s appeal was dismissed by the High Court and his appeal before this Court also met the same fate. Thereafter the petitioner filed Criminal Review Petition 65 of 2010 before this Court which was also dismissed vide order dated 11.11.2010. The petitioner then filed an application before the Anti-Terrorism Court, Sargodha seeking permission to compound the offences against him. The said application was rejected by the said court vide order dated 18.02.2011 which order was upheld by the High Court on 16.08.2011 and the petitioner has challenged the said order before this Court through this petition. Civil Appeal No. 253 of 2015 Civil Appeal No. 1772 of 2008, etc. 5 (Muhammad Qaiser @ Billa v The learned District & Session Judge/Judge ATC No. 1, Faisalabad and others) The appellant was tried by the Anti-Terrorism Court, Faisalabad and was convicted and sentenced to death for the offence under section 302(b), PPC as well as for the offence under section 7 of the Anti-Terrorism Act, 1997 besides having been convicted and sentenced for some other offences. The appellant’s appeals were dismissed by the High Court and also by this Court and his convictions and sentences were upheld. The appellant then filed a Criminal Suo Motu Review Petition before this Court which was dismissed and his Mercy Petition was also rejected by the President of Pakistan. In a subsequent round the appellant’s application for compromise was dismissed by the trial court and the High Court refused to interfere in the same. Leave to appeal was granted by this Court to examine the effect of a compromise in the compoundable offences on the sentence passed under section 7 of the Anti-Terrorism Act, 1997 which offence is non- compoundable. Criminal Petition No. 988 of 2015 (Waryam and another v The State) The petitioners were tried by the Anti-Terrorism Court, Sukkur and were convicted and sentenced to imprisonment for life for the offence under section 302(b), PPC and also for the offence under section 7 of the Anti-Terrorism Act, 1997 besides having been convicted and sentenced for some other offences. The petitioners’ appeal was dismissed by the High Court and their Jail Petition filed before this Court was also dismissed. Subsequently the parties entered into a compromise but the trial court refused to give effect to it and later on a revision petition filed by the petitioners in that regard was dismissed by the High Court which order was assailed by the petitioners before this Court through a Criminal Suo Motu Review Petition which is being treated as the instant petition. Criminal Appeal No. 391 of 2015 Civil Appeal No. 1772 of 2008, etc. 6 (Zafar Hussain and another v The State and others) The appellants were convicted by the trial court for the offence under section 396, PPC and were sentenced to death and they were also convicted for the offence under section 302(c), PPC and were sentenced to rigorous imprisonment for 10 years and later on their convictions and sentences had been upheld and maintained by the High Court as well as this Court. The appellants then filed Criminal Review Petition 106 of 2015 before this Court which was also dismissed vide order dated 08.09.2015. Subsequently the parties entered into a compromise but the trial court refused to give effect to it and a revision petition filed by the appellants in that regard before the High Court was also dismissed. Leave to appeal was granted by this Court to consider whether the sentences of death awarded to the appellants for the offence under section 396, PPC, which is a non-compoundable offence, could be converted into imprisonment for life in view of the compromise affected between the parties in the coordinate compoundable offence. Criminal Appeal No. 19 of 2018 (Kalay Khan v The State) The appellant was convicted by the trial court for the offences under section 302(b), PPC and section 7(a) of the Anti-Terrorism Act, 1997 and was sentenced to death for both the said offences besides having been convicted and sentenced for the offences under section 324, PPC, section 148, PPC and section 7(c) of the Anti-Terrorism Act, 1997. During pendency of the appellant’s appeal before the High Court the complainant party entered into a compromise with the appellant leading to his acquittal from the charge under section 302(b), PPC and conversion of his sentence of death under section 7(a) of the Anti-Terrorism Act, 1997 to imprisonment for life. Leave to appeal was granted by this Court to examine the effect of a compromise in connection with a compoundable offence on the conviction and sentence recorded for an offence under the Anti-Terrorism Act, 1997 which offence is non-compoundable. Civil Appeal No. 1772 of 2008, etc. 7 2. We have heard the learned counsel for the parties and the learned law officers at some length and with their assistance we have attended to the factual and legal issues involved in these cases as well as the precedent cases available on the subject. 3. We find that three questions emerging from the facts of the present cases need to be answered and they are as follows: (i) Can a non-compoundable offence be treated as a compoundable offence for the purpose of recording an acquittal in respect of that offence if a coordinate compoundable offence committed in the same case has been compounded by the relevant parties? (ii) Can the sentence passed in a non- compoundable offence be reduced on the ground that a coordinate compoundable offence committed in the same case has been compounded by the relevant parties? (iii) If the answer to question No. (ii) is in the affirmative then at what stage and by which court or forum reduction in the sentence passed in respect of a non-compoundable offence be ordered, if deemed warranted in the circumstances of the case? 4. A careful perusal of different precedent cases decided by this Court shows that the answers to all these questions are already available in such cases but they are in a scattered form and the same need to be consolidated so that the above mentioned questions may be answered with clarity and any confusion in that regard may be removed. The relevant extracts from such precedent cases are reproduced here for facility of reference: Muhammad Rawab v The State (2004 SCMR 1170) Civil Appeal No. 1772 of 2008, etc. 8 “3. Heard Dr. Babar Awan, learned Advocate Supreme Court on behalf of appellant and learned Advocate-Generals for the State. The pivotal question which needs determination would be as to whether parties can be allowed to compound the offences which are not compoundable by virtue of the provisions as contemplated in section 345, Cr.P.C. specially in view of the specific bar as mentioned in subsection (7) of section 345, Cr.P.C. There is no denying the fact that section 365-A, P.P.C. read with section 7(e) of the Anti-Terrorism Act, 1997 is not compoundable. The provisions as contained in section 345(7), Cr.P.C. have been couched in such a plain and simple language that there is hardly any scope for any interpretation except that a non-compoundable offence cannot be made compoundable by this Court for the simple reason that no amendment, deletion, insertion or addition could be made by this Court and it could only be done by the Legislature as this aspect of the matter falls in its exclusive domain of jurisdiction. The provisions as contained in section 345, Cr.P.C. cannot be stretched too far by including the non- compoundable offence therein under the garb of humanitarian grounds or any other extraneous consideration. The offences committed by the appellant are not of grave and alarming nature but the same are against the society as a whole and cannot be permitted to compound by any individual on any score whatsoever. It may be noted that tabulation of the offences as made under section 345, Cr.P.C. being unambiguous remove all doubts, uncertainty and must be taken as complete and comprehensive guide for compounding the offences. The judicial consensus seems to be that “The Legislature has laid down in this section the test for determining the classes of offences which concern individuals only as distinguished from those which have reference to the interests of the State and Courts of law cannot go beyond that test and substitute for it one of their own. It is against public policy to compound a non-compoundable offence, keeping in view the state of facts existing on the date of application to compound. No offences shall be compounded except where the provisions of section 345, Cr.P.C. are satisfied as to all matters mentioned in the section”. (Emphasis provided). 4. The above judicial consensus is based on the following authorities:-- Dalsukhram Hargovandas v. Charles DeBretton 28 Bom. 326; Meenakshi Sundarammal v. Subramaniam Ayyar AIR 1955 Mad. 369; Akshoy Singh v. Rameshawar Bagdi AIR 1917 Cal. 705; Mt. Rani v. Mt. Jaiwanti AIR 1925 Nag. 395; Crown v. Muhammad Hussain PLD 1950 Lah. 86; Gurunarayan Das and others’s case AIR 1948 Pat. 58; Agha Nazarali Sultan Muhammad v. Emperor AIR 1941 Sind 186; Emperor v. Jarnally and others AIR 1925 Lah. 464; Ghulam Rasool v. State 1999 MLD 3085; Muhammad Asif v. State 1991 MLD 1026; Noor Muhammad alias Noora v. State 1992 SCMR 2079; Muhammad Nazir alias Jeera v. State PLD 2001 Lah. 212; Muhammad Anwar v. State 1986 MLD 1111; Nawab-ul- Hassan v. State 2003 SCMR 658 and Yousaf Ali v. State 2002 SCMR 1885.” Ghulam Farid alias Farida v The State (PLD 2006 SC 53) “5. The offence of dacoity is not compoundable either under pure Islamic Law or under the statutory law of Pakistan, therefore, the contention of the learned counsel that notwithstanding the circumstances under which the murder had Civil Appeal No. 1772 of 2008, etc. 9 taken place, Qatl with no distinction is compoundable in Islam and the bar of statutory law would not be applicable, has no substance. There is concept of right of Afw and Badal-e-Suleh in a case of Qatl-i-Amd, punishable under section 302(a), P.P.C., as Qisas and this right can also be exercised with permission of Court in a case in which punishment of death is awarded as Tazir under section 302(b) but the concept of Afw and Badl-e-Suleh under the existing law has not been made applicable to a case under section 396, P.P.C., in which death is awarded for murder taken place during the course of committing dacoity and thus the Court cannot competently give effect to a compromise in a non- compoundable offence against the policy of law. The petitioner in the present case was awarded sentence of death under section 396, P.P.C. for murder as Tazir which had taken place during the course of committing dacoity and the offence under section 396, P.P.C., being not compoundable, the provision of sections 309 and 310, P.P.C., read with 338(E), P.P.C., could not be made applicable to give effect to a compromise in a non-compoundable offence under the law. In the matter of interpretation and application of provision of Chapter XVI, P.P.C., in respect of the offences mentioned therein or the matters ancillary or akin thereto Court can seek guidance from Holy Quran and Sunnah as provided in section 338(F), P.P.C., but the Court cannot bring a non-compoundable offence within the purview of section 345, Cr.P.C., by virtue of section 338-F, P.P.C., for the purpose of compounding it on the basis of compromise. This is settled law that Courts can interpret the provisions of law but cannot change or substitute such provisions and also cannot go beyond the wisdom of law. The contention of the learned counsel that the compromise between the parties at least could be treated a mitigating circumstance for the purpose of lesser punishment, has also no substance. This Court while upholding the judgment of the High Court by virtue of which conviction and sentence awarded to the petitioner by the trial Court was maintained, has already dismissed the petition for leave to appeal. The present petition has arisen out of the proceedings in a miscellaneous application moved by the petitioner for his acquittal on the basis of his compromise with the legal heirs of the deceased, therefore, in these proceedings, it was not possible for the High Court to re- open the case on merits in exercise of its powers under section 561-A, Cr.P.C., and similarly this Court is not supposed to undertake such an exercise under Article 187 of the Constitution of Islamic Republic of Pakistan and consider the question relating to the quantum of sentence on the basis of compromise between the parties in such a heinous offence which is considered a crime against the Society.” M. Ashraf Bhatti and others v M. Aasam Butt and others (PLD 2006 SC 182) “7. In view of the facts that parties have compromised the matter and compensation has already been received by the complainants therefore, permission is accorded to compound the offence under section 345(2), Cr.P.C. Now we would advert to examine whether in the cases like one in hand where brutal murder of two young boys has been committed when they were confined in judicial lock-up, in a shocking manner which has outraged the public conscience, the convicts are liable for punishment on the principle of Fasad-fil-Arz. The facts of the case and material available on record reveal that petitioners/convicts have committed crime in a brutal manner of the deceased who were confined in lock-up. Therefore, considering them sitting ducks, they took the law in their hands, without caring that police stations or Court premises are considered such places where law protects the life of citizens. Therefore, in exercise of Civil Appeal No. 1772 of 2008, etc. 10 jurisdiction under section 311, P.P.C. the sentence of death of the two convicts namely Naheeb Butt alias Bhutto and Moazzam Butt is reduced from death to life imprisonment under section 302, P.P.C. and under section 7(b) of A.T.A. on both the counts. Similarly sentences awarded to Muhammad Aasam and Shahbaz alias Dodi for imprisonment of life under section 302(b), P.P.C. is reduced to 14 years and sentence awarded to them for life imprisonment under section 7(b) of A.T.A. is kept intact on both the counts with benefit of section 382-B of Cr.P.C., which has already been extended to them by the Lahore High Court. Remaining sentences awarded to them are kept intact. All the sentences shall run concurrently.” Muhammad Akhtar alias Hussain v The State (PLD 2007 SC 447) “2. The petitioner after having been unsuccessful in his attempts to secure his acquittal in the case initiated making efforts to effect a compromise with the complainant party and in this respect he submitted an application before the trial Court for his acquittal on the basis of the compromise. His this application was dismissed by the trial Court against which a writ petition was filed before the High Court. The case was remanded back by the High Court to the Anti-Terrorism Court (the trial Court) with the direction to give findings with regard to the compromise between the parties. This time the trial Court while allowing the compromise to the extent of charge under section 302(b), P.P.C., acquitted the petitioner from the said charge whereas his application to the extent of conviction and sentence on the charge under section 7 of the ATA, 1997 was dismissed. The petitioner again approached the High Court through a Constitution Petition questioning the legality of the order on the ground that the conviction and sentence of the petitioner under section 7 of the ATA, 1997 is the outcome of the main charge under section 302(b), P.P.C. and since the petitioner has already been acquitted from the said charge he is also entitled to be acquitted from the charge under section 7 of the ATA, 1997. However, his this plea was not accepted by the High Court and his writ petition was dismissed and now the present petition. 3. The learned counsel for the petitioner has vehemently contended, as submitted before the High Court, that after the acquittal of the petitioner under section 302, P.P.C. he was entitled to the acquittal under section 7 of the ATA, 1997 which is the offshoot of the main offence under section 302, P.P.C. 4. We have attended to his this contention. Whatever the nature or status of an offence but for the purposes of the compromise it will be seen as to whether the offence/the section of law for which the compromise is requested is compoundable under the law or not. The offences which are compoundable have been mentioned in section 345(1), Cr.P.C. Since the offence is under section 7 of the ATA, 1997 for which a death penalty has been prescribed does not find its mention in the aforesaid section in the category of the offences which are compoundable, and both the Courts below have rightly disallowed the compromise. In this respect reliance can be placed on the case of Muhammad Rawab v. The State 2004 SCMR 1170. The relevant extract from the judgment in which leave was granted in order to examine, inter alia, the following:-- “2. ------- The question whether the Court can permit the parties to compound the offences which are not mentioned in section 345, Cr.P.C. specially when there is a bar under section 345(7) of Cr.P.C. Civil Appeal No. 1772 of 2008, etc. 11 for entertaining a compromise in the offences not mentioned in section 345, Cr.P.C.” The Court while dismissing the appeal held:-- “3. ------- The pivotal question which needs determination would be as to whether parties can be allowed to compound the offences which are not compoundable by virtue of the provisions as contemplated in section 345, Cr.P.C. specially in view of the specific bar as mentioned in subsection (7) of section 345, Cr.P.C. There is no denying the fact that section 365-A, P.P.C. read with section 7(e) of the Anti-Terrorism Act, 1997 is not compoundable. The provisions as contained in section 345(7), Cr.P.C. have been couched in such a plain and simple language that there is hardly any scope for any interpretation except that a non- compoundable offence cannot be made compoundable by this Court for the simple reason that no amendment, deletion, insertion or addition could be made by this Court and it could only be done by the Legislature as this aspect of the matter falls in its exclusive domain of jurisdiction. The provisions as contained in section 345, Cr.P.C. cannot be stretched too far by including the non- compoundable offence therein under the garb of humanitarian grounds or any other extraneous consideration. The offences committed by the appellant are not of grave and alarming nature but the same are against the society as a whole and cannot be permitted to compound by any individual on any score whatsoever. It may be noted that tabulation of the offences as made under section 345, Cr.P.C. being unambiguous remove all doubts, uncertainty and must be taken as complete and comprehensive guide for compounding the offences. The judicial consensus seems to be that “The Legislature has laid down in this section the test for determining the classes of offences which concern individuals only as distinguished from those which have reference to the interests of the State and Courts of law cannot go beyond that test and substitute for it one of their own. It is against public policy to compound a non-compoundable offence, keeping in view the state of facts existing on the date of application to compound. No offences shall be compounded except where the provisions of section 345, Cr.P.C. are satisfied as to all matters mentioned in the section.” The aforesaid judgment was followed by this Court in another case, Ghulam Farid alias Farida v. The State PLD 2006 SC 53. 5. We have also considered the question of reduction of sentence in view of the compromise arrived at between the parties. Since the matter before us is not in the regular proceeding arising out of the conviction and sentences passed by the trial Court and his appeal before the High Court and then a petition before this Court but after the decision having been rendered by this Court dismissing the petition of the petitioner against the order of his conviction and sentence and while dismissing the petition by this Court, his conviction and sentences under section 302/34, P.P.C. and section 7 of the ATA, Civil Appeal No. 1772 of 2008, etc. 12 1997 were kept intact. So once the findings have been given on merits by this Court, then it would not be appropriate to enter the merits of the case again to consider the reduction of sentence in an offence which is not compoundable. In this respect the relevant portion of paras. 4 and 5 of the judgment passed in the case of Ghulam Farid (supra) are reproduced hereinbelow:-- “4. ------- There is no cavil to the proposition that the Courts at all levels without any legal impediment, while deciding the criminal cases on merits, in the regular proceedings, can consider the compromise of an offender with the victim or his legal heirs, as a mitigating circumstance for the purpose of question of sentence in a non- compoundable offence but after final disposal of a criminal matter, Courts cannot assume jurisdiction to re-open the case on merits in collateral proceedings arising out of miscellaneous application. The petitioner after losing the case on merits, before the trial Court, the High Court and also before this Court in regular proceedings moved an application to the Court of first instance for his acquittal on the basis of his compromise with the legal heirs of the deceased wherein he also made an alternate prayer of reduction in sentence - ------ 5. ------- This is settled law that Courts can interpret the provisions of law but cannot change or substitute such provisions and also cannot go beyond the wisdom of law. The contention of the learned counsel that the compromise between the parties at least could be treated a mitigating circumstance for the purpose of lesser punishment, has also no substance. This Court while upholding the judgment of the High Court by virtue of which conviction and sentence awarded to the petitioner by the trial Court was, maintained, has already dismissed the petition for leave to appeal. The present petition has arisen out of the proceedings in a miscellaneous application moved by the petitioner for his acquittal on the basis of his compromise with the legal heirs of the deceased, therefore, in these proceedings, it was not possible for the High Court to re-open the case on merits in exercise of its powers under section 561-A, Cr.P.C., and similarly this Court is not supposed to undertake such an exercise under Article 187 of the Constitution of Islamic Republic of Pakistan and consider the question relating to the quantum of sentence on the basis of compromise between the parties in such a heinous offence which is considered a crime against the Society.” 6. The findings of the Courts below by not granting permission to compound the offence under section 7 of the ATA, 1997 are in accordance with law and particularly in view of the bar as contained in subsection (7) of section 345, Cr.P.C. We find no illegality in the orders impugned herein and which does not deserve any interference. Resultantly we see no force in this petition, leave is declined and the petition dismissed.” Muhammad Nawaz v The State (PLD 2014 SC 383) Civil Appeal No. 1772 of 2008, etc. 13 “8. It is to be noted that the act of terrorism, though is interlinked with the principal offence i.e. 302(b), P.P.C., falls under a different provision of law i.e. section 6(2)(n) of ATA. Deceased Muhammad Mumtaz was on official duty at the time of the occurrence as it is evident from the statements of P.Ws. that he was in uniform and was causing arrest of nominated accused along with raiding police party but to terrorize the police the accused opened fire, which caused his (Muhammad Mumtaz) death and also created obstruction in the discharge of their duty. Sentence under section 302(b) attracts the provision of section 353, P.P.C., which he has already undergone. Thus, the offence under section 6(2)(n) of ATA also stands established against the petitioner, which provides the meaning of terrorism and any such action that falls within the meaning of said section, involving serious violence against a member of the police force, armed forces, civil armed forces, or a public servant. This offence stood established, in view of the facts and circumstances narrated hereinabove, particularly, accepting the conviction/sentence under section 302(b), P.P.C. as he has entered into compromise with the deceased, however as far as the second count of death sentence under section 7 ATA is concerned, it has got its own implications and is not compoundable under section 345 subsections (5) and (7) of Cr.P.C. This Court examined this very proposition in the case of Muhammad Rawab v. State (2005 SCMR 1170), reliance on which has also been placed by the Sessions Judge when the compromise under section 302(b), P.P.C. and 7 of ATA was submitted. Learned Special Judge gave effect the compromise only to the extent of 302(b), P.P.C., whereas compromise under section 7 ATA was not allowed to be compounded in view of the law referred to hereinabove. 9. However, this fact can also not be over sighted that in respect of murder of Muhammad Mumtaz, Constable, the petitioner was also sentenced to death and now the parties have compounded the offence under section 302(b), P.P.C. and according to the record compensation has also been paid. Therefore, question for quantum of sentence under section 7 of ATA can be examined in view of the judgment in the case of M. Ashraf Bhatti v. M. Aasam Butt (PLD 2006 SC 182) wherein after the compromise between the parties sentence of death was altered to life imprisonment. 10. It is to be noted that both the sentences i.e. death and life imprisonment are legal sentences, therefore, under the circumstances either of them can be awarded to him. Thus in view of the peculiar circumstances noted hereinabove, sentence of death under section 7 ATA, 1997 is converted into life imprisonment without extending benefit of section 382-B, Cr.P.C. as the same was not allowed by the trial Court, first appellate Court as well as by this Court in the judgment under review. 11. Accordingly, compromise between the parties is accepted to the extent of conviction under section 302(b), P.P.C. and the petitioner is acquitted of the charge. However, the death sentence under section 7 of ATA is converted into life imprisonment and the review petition is disposed of.” Shahid Zafar and 3 others v The State (PLD 2014 SC 809) “9. Insofar as the compounding of the offences is concerned by the appellants reached through compromise with the legal heirs of the deceased, it would be seen that Section 7 (a) of the Anti Terrorism Act, 1997 is not compoundable and hence the Civil Appeal No. 1772 of 2008, etc. 14 learned High Court correctly dismissed such compromise applications. Even otherwise we are of the opinion that the cruel and gruesome murder of the deceased who had been begging for his life from the appellants certainly amounted to Fasad-Fil-Arz within the meaning of Section 311, P.P.C. and hence there could not be any question of acceptance of compromise between the parties. However having said as much we are also aware that in the case of Muhammad Nawaz (Supra) this Court had converted the sentence of death to that of life imprisonment under Section 7(a) of the Anti Terrorism Act 1997 where the legal heirs had compounded the matter with the accused as in the present case. Consequently we would partly allow Criminal Appeal No.8-K of 2014 by directing that the sentence of death imposed upon the appellant Shahid Zafar be reduced to life imprisonment.” Kareem Nawaz Khan v The State (2019 SCMR 1741) “3. Karim Nawaz Khan petitioner had allegedly murdered his sister, a brother and a sister-in-law by firing at them with the use of a Kalashnikov in an incident taking place at about 12.00 Noon on 03.06.2007 inside the house of Muhammad Khan complainant in village Whandi Shiapur in the area of Police Station Moch, District Mianwali in the backdrop of a motive based upon a dispute between the parties over some ancestral property. With these allegations the petitioner was booked in case FIR No 101 registered at the above mentioned Police Station soon after the incident and after a regular trial the petitioner was convicted on 3 counts of an offence under section 302(b), P.P.C. and was sentenced to death on each count and to pay compensation and Diyat to their heirs of the deceased. The petitioner was also convicted by the trial court for an offence under section 7(a) of the Anti-Terrorism Act, 1997 and even on that count of the charge he was sentenced to death and to pay fine. The petitioner was additionally convicted by the trial court for an offence under section 21-L of the Anti-Terrorism Act, 1997 and for the said offence he was sentenced to rigorous imprisonment for five years and to pay fine. The petitioner challenged his convictions and sentences before the High Court through an appeal which was dismissed and all his convictions and sentences recorded by the trial court were upheld and confirmed by the High Court. Thereafter the petitioner approached this Court through Criminal Petition No. 1245-L of 2010 but the said petition was also dismissed by this Court on 05.06.2012 and leave to appeal was refused to him. Hence, the present review petition before this Court. 4. On 05.06.2012 this Court had dismissed Criminal Petition No. 1245-L of 2010 after attending to the merits of the petitioner’s case and it had been held by this Court that the courts below were justified in convicting and sentencing the petitioner and in upholding and confirming his sentences. Through the present review petition it has been brought to this Court’s notice that after passage of the said order by this Court upholding and maintaining the petitioner’s convictions, and sentences the heirs of all the three deceased had entered into a compromise with the petitioner which compromise was presented before the trial court, i.e. the Anti-Terrorism Court, Sargodha and vide judgment dated 19.02.2014 the learned Judge, Anti-Terrorism Court, Sargodha was pleased to accept the said compromise on all the three counts of the charge under section 302(b), P.P.C. whereas the said compromise was rejected to the extent of the petitioner’s convictions and sentences for the offences under sections 7(a) and 21-L of the Anti-Terrorism Act, 1997. We have gone through Civil Appeal No. 1772 of 2008, etc. 15 the said order passed by the trial court on 19.02.2014 and have noticed that the trial court had felt satisfied regarding genuineness and completion of the acclaimed compromise between the parties. Through the present review petition the learned counsel for the petitioner has urged that in view of the compromise affected between the parties vis-à-vis the offences under section 302(b), P.P.C. the sentence of the petitioner for the offence under section 7(a) of the Anti-Terrorism Act, 1997 may be reduced from death to imprisonment for life. In support of this submission the learned counsel for the petitioner has referred to the cases of Muhammad Nawaz v. State (PLD 2014 SC 383), Shahid Zafar and 3 others v. The State (PLD 2014 SC 809) and M. Ashraf Bhatti and others v. M. Aasam Butt and others (PLD 2006 SC 182). The learned Additional Prosecutor-General, Punjab appearing for the State has submitted that in above mentioned precedent cases this Court had indeed utilized a compromise between the parties for reduction of a convict’s sentence of death to imprisonment for life on a charge under section 7(a) of the Anti-Terrorism Act, 1997 and, thus, the matter of reduction of the petitioner’s sentence on such score in the present case lies within the discretion of the Court. 5. After hearing the learned counsel for the parties and going through the record we have noticed that the appellant was very closely related to all the three murdered persons in this case, i.e., he was a brother of two of the deceased and a brother-in-law of the third deceased and the incident in issue had taken place because of a dispute between the parties over some ancestral property. According to the prosecution itself there was no enmity between the parties and the present incident had taken place half an hour of an earlier incident wherein the petitioner and the deceased and some others had quarreled with each other while discussing the matter of ancestral property. It could, thus, be said that in the absence of any on-going enmity between the parties the present occurrence had taken place because of some very recent provocation offered to the petitioner by the complainant party while discussing the issue regarding ancestral property. It may, therefore, be a case not of grave and sudden provocation but a case which was based upon some provocation recently offered to the petitioner although the same was not sudden. In a case of such a situation this Court has held that the least that a Court can do in such a case is to reduce the sentence of death to imprisonment for life and a reference in this respect may be made to the case of Ghulam Abbas v. Mazhar Abbas and another (PLD 1991 SC 1059). There is an additional factor available in this case for reduction of the petitioner’s sentence of death to imprisonment for life and that is that a valid compromise had been arrived at between the parties which has already been allowed by the trial court vis-à-vis three counts of the charge under section 302(b), P.P.C. In the cases of Muhammad Nawaz v. The State (PLD 2014 SC 383), Shahid Zafar and 3 others v. The State (PLD 2014 SC 809) and M. Ashraf Bhatti and others v. M. Aasam Butt and others (PLD 2006 SC 182) this Court has already considered a valid and accepted compromise in the coordinate offence to be a valid ground for reduction of a sentence of death into imprisonment for life on the charge of terrorism or of a non- compoundable offence. 6. For what has been discussed above this review petition is allowed, the order under review dated 05.06.2012 passed by this Court in Criminal Petition No. 1245-L of 2010 is recalled, the said petition is converted into an appeal and the same is partly allowed with the result that the sentence of death passed against the petitioner/appellant for the offence under section 7(a) of the Anti-Terrorism Act, 1997 is converted into a sentence of Civil Appeal No. 1772 of 2008, etc. 16 imprisonment for life. The order passed by the trial court regarding payment of fine on that charge is maintained but it is ordered that in default of payment of fine he shall undergo simple imprisonment for six months. On account of a valid compromise having been arrived at between the heirs of the three deceased and the present appellant, which compromise had already been allowed by the trial court, his convictions and sentences on three counts of the charge under section 302(b), P.P.C. are set aside and he is acquitted of the said counts of the charge. The appellant has already served out his sentence of imprisonment for the offence under section 21-L of the Anti-Terrorism Act, 1997 which shall be deemed to have run concurrently with his other sentence of imprisonment. The appellant shall be allowed the benefit under section 382-B, Cr.P.C. as far as his reduced sentence under section 7(a) of the Anti-Terrorism Act, 1997 is concerned. This review petition and the appellant’s petition converted into an appeal are disposed of in the terms noted above.” 5. The situation is altogether different in cases where the convictions and sentences of convicts have already attained finality after decision of their review petitions by this Court. Order XXVI Rule 9 of the Supreme Court Rules, 1980 provides as follows: “After the final disposal of the first application for review no subsequent application for review shall lie to the Court and consequently shall not be entertained by the Registry.” There is, thus, no scope for maintainability of a second or subsequent review petition before this Court after the first review petition has been decided. It is sometimes argued that in such a situation, particularly in a case of extreme hardship, this Court may attend to the matter in exercise of its jurisdictions under Articles 184(3) or 187 of the Constitution or may resort to revisiting the earlier order or judgment in order to safeguard the interests of justice but such arguments have consistently been rejected by this Court in the past. In many previous cases this Court has consistently held that after exhausting the review jurisdiction of this Court a party to a case cannot invoke Articles 184(3) or 187(1) of the Constitution for reopening the same case. It has also been held by this Court that the question whether an interpretation of law in any earlier order or judgment of this Court needs to be revisited or not is a question to be decided by this Court upon its own initiative and no party to a case or any other interested person can approach this Court for revisiting its earlier Civil Appeal No. 1772 of 2008, etc. 17 orders or judgments. The following precedent cases may be referred to in this respect: Khalid Iqbal and 2 others v Mirza Khan and others (PLD 2015 SC 50) “12. The question of maintainability of the 2nd Criminal Review Petition on the ground that this Court has to do complete justice by invoking Article 187(1) of the Constitution is also misconceived. The provisions of Article 187(1) cannot be attracted in the present case, as this Court has already recorded findings against the petitioner by the Judgment dated 28-2-2001, against which review was also dismissed and there was no ‘lis’ pending before this Court warranting exercise of its jurisdiction under Article 187(1) of the Constitution, besides Rule 9 of the Order XXVI of the Supreme Court Rules, bars 2nd Review Petition. There is a distinction between right of a party to approach the Court and jurisdiction of the Court to do complete justice on its own. Once this Court has finally determined the right of the petitioner in the judgment dated 28-2-2001, holding him guilty, the petitioner through 2nd Review Petition, cannot reagitate it. If such a Review Petition is allowed to be entertained, it will land in a situation where findings of this Court against a party will never attain finality. 13. This, however, does not mean that the jurisdiction of this Court is barred by any restriction placed by the Constitution; there is no Article in the Constitution which imposes any restriction or bar on this Court to revisit its earlier decision or even to depart from them, nor the doctrine of stare decisis will come in its way so long as revisiting of the judgment is warranted, in view of the significant impact on the fundamental rights of citizens or in the interest of public good. This issue was fully comprehended and answered in the case titled Regarding pensionary benefits of the Judges of Superior Courts from the Date of their respective retirements, irrespective of their length of service as such Judges (PLD 2013 SC 829 at page 993). The relevant portions are reproduced herein below:-- “3. My learned brother has exhaustively dealt with the question of maintainability, which is a threshold proposition of the matter, and in this behalf extensive reference to the case-law has also been made. I therefore have no intention to add any superfluity to that, however, my approach to the proposition is quite simple, plain and facile, in that, the Supreme Court of Pakistan is the apex Court of the country. It is the final, the utmost and the ultimate Court, inter alia, in relation to, (a) resolving disputes inter se the parties before it, (b) securing and enforcing the fundamental rights of the citizen/person, when those (rights) are in issue before the Court, in any of its jurisdiction, either original or appellate or suo motu, (c) the interpretation and the enunciation of the law of the land, (d) examining and adjudging the legislative Acts and the executive order/actions of the State, in the exercise of its power of judicial review, (e) the exercise of original jurisdiction as per the mandate of Article 184 of the Constitution, (f) the advisory jurisdiction within the parameter of Article 186 of the Constitution, (g) the review of its decision Civil Appeal No. 1772 of 2008, etc. 18 (judgments) (see Article 188) (h) a special jurisdiction conferred upon this Court by any law. And above all the power to do complete justice (see Article 187). In terms of Article 189 of the Constitution, “Any decision of the Supreme Court shall, to the extent that it decides question of law or is based upon or enunciates a principle of law, (emphasis supplied) be binding on all other courts in Pakistan”. Moreover, according to Article 190 “All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court”. 4. The aforestated legal position explains and highlights the true magnitude and the supremacy of this Court in regard to the dispensation of justice in the country and the enunciation and the declaration of the law by it. As the law laid down by the (apex) Court, and the order(s) passed by it, being the paramount and ultimate in nature, has to be imperatively and mandatorily followed, obeyed and adhered to by all the concerned. Reading Articles 189 and 190 conjointly, and while keeping in view the scheme of the Constitution, the very purpose, the pivotal position and the status of this Court (prescribed above), it is expedient that correct law should be pronounced by the apex Court. And pursuant to the above object and due to the venerated position of this Court, the Court is cumbered with, inviolable responsibility, and a sacred duty, to interpret, declare and enunciate the law correctly, so that it should be followed, obeyed and adhered to purposively and in letter and spirit, by all the other organs of the State (including all other Courts in Pakistan) strictly inconsonance with the true aim of the aforementioned Articles. It may be pertinent to mention here, that any invalid enunciation of law, shall contravene and impugn the very character, and attribute(s) of this Court and such bad/wrong law shall cause drastic adverse effects on the socioeconomic, political, geographical, ethnic, cultural aspects and dynamics of the nation, the society, the people at large and the State in presentee or in futurio. In the above context, reference can also be made to Article 4 of the Constitution which enshrines (inter alia) an inalienable right of every citizen to be dealt with in accordance with the law, obviously this shall mean the law that is, correctly laid down by this Court. As it is a cardinal principle of justice, that the law should be worn by the Judge in his sleeves and justice should be imparted according to the law, notwithstanding whether the parties in a lis before the Court are misdirected and misplaced in that regard. Therefore, if any law which has been invalidly pronounced and declared by this Court, which in particular is based upon ignorance of any provisions of the Constitution, and/or is founded on gross and grave misinterpretation thereof; the provisions of the relevant law have been ignored, misread and misapplied; the law already enunciated and settled by this Court on a specific subject, has not been taken into account, all this, inter alia, shall constitute a given judgment(s) as per incuriam; and inconsistent/conflicting decision Civil Appeal No. 1772 of 2008, etc. 19 of this Court shall also fall in that category. Such decision undoubtedly shall have grave consequences and repercussions, on the State, the persons/ citizens, the society and the public at large as stated above. Therefore, if a judgment or a decision of this Court which is found to be per incuriam (note: what is a judgment per incuriam has been dealt with by my brother), it shall be the duty of this Court to correct such wrong verdict and to set the law right. And the Court should not shun from such a duty (emphasis supplied). For the support of my above view, I may rely upon the law laid down in the dicta Lt. Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty, Government of Pakistan, Karachi and others (PLD 1962 SC 335 at page 340):-- “Where, however, there is found to be something directed by the judgment of which review is sought which is in conflict with the Constitution or with a law of Pakistan, there it would be the duty of the Court, unhesitatingly to amend the error. It is a duty which is enjoined upon every Judge of the Court by the solemn oath which he takes when he enters upon his duties, viz., to “preserve, protect and defend the Constitution and laws of Pakistan” But the violation of a written law must be clear.” M. S. Ahlawat v. State of Haryana and another (AIR 2000 SC 1680):-- “15. To perpetuate an error is no virtue but to correct it is a compulsion of judicial conscience.” Bengal Immunity Co. Ltd., v. State of Bihar and others (AIR 1955 SC 661):-- “19. Reference is made to the doctrine of finality of judicial decisions and it is pressed upon us that we should not reverse our previous decision except in cases where a material provision of law has been overlooked or where the decision has proceeded upon the mistaken assumption of the continuance of a repealed or expired statute and that we should not differ from a previous decision merely because a contrary view appears to us to be preferable. It is needless for us to say that we should not lightly dissent from a previous pronouncement of this court. Our power of review, which undoubtedly exists, must be exercised with due care and caution and only for advancing the public well being in the light of the Civil Appeal No. 1772 of 2008, etc. 20 surrounding circumstances of each case brought to our notice but we do not consider it right to confine our power within rightly fixed limits as suggested before us. If on a re-examination of the question we come to the conclusion, as indeed we have, that the previous majority decision was plainly erroneous then it will be our duty to say so and not to perpetuate our mistake even when one learned Judge who was party to the previous decision considers it incorrect on further reflection (emphasis supplied by me). In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Corporation of Calcutta (AIR 1967 SC 997) it is held:- “If the aforesaid rule of construction accepted by this Court is inconsistent with the legal philosophy of our Constitution, it is our duty to correct ourselves and lay down the right rule (emphasis supplied by me). In constitutional matters which affect the evolution of our policy, we must more readily do so than in other branches of law, as perpetuation of a mistake will be harmful to public interests. While continuity and consistency are conducive to the smooth evolution of the rule of law, hesitancy to set right deviations will retard its growth. In this case, as we are satisfied that the said rule of construction is inconsistent without republican polity and, if accepted, bristles with anomalies, we have no hesitation to reconsider our earlier decision.” The question, however, shall be as to how this duty should be discharged and the object of correcting the wrong law, and setting it (the law) right should be achieved. One of the obvious ways of doing so is, when a party to the lis seeks review of the wrong judgment in terms of Article 188 of the Constitution. But what, if that remedy is not availed for any reason, or even if availed by the concerned, is discarded by the Court (again by committing an another wrong). Whether thereafter, such a wrong decision on the point of law, cannot be remedied and interfered with, revisited or set aside at all or in other words, even if a judgment which is patently per incuriam, infinitely should be left outstanding, allowing it to become the liability of this Court and our legal/judicial system, for all future times. And the (this) Court and the system should be fettered by it, and held as a captive thereto, leaving it intact to pervade and permeate serious prejudice in perpetuity to the persons/ citizens of the country and even the State, Civil Appeal No. 1772 of 2008, etc. 21 compelling them, to be dealt with by a wrong/invalid law, despite it having come to the notice of the Court, through any means whatsoever, that such decision suffers from patent and gross vice, and it is vividly a judgment per incuriam by all references. The answer is “No”. In my candid view the approach to leave such a decision to stay intact shall be ludicrous and shall lead to drastic effects as indicated above. Rather in such a situation this Court, having special position in our judicature (judicial system as highlighted above) shall have the inherent, intrinsic and inbred power (jurisdiction) vested in it, (a) to declare a judgment per incuriam; (b) decline to follow the same as a valid precedent, (c) and/or to set it aside. For the exercise of jurisdiction in that regard and for the discharge of the duty as mentioned earlier, it is absolutely irrelevant and immaterial vide (via) which source it (decision) has come to the notice of the Court. The Court once attaining the knowledge of such a blemished and flawed decision has the sole privilege, to examine the same and to decide about its fate, whether it is per incuriam or otherwise. In this context, it may be mentioned, for example, if while hearing some case, it is brought to the attention of the Court by the member(s) of the Bar; or during the hearing of any matter, the Court itself finds an earlier judgment to be per incuriam; or if a Judge (Judge of this Court) in the course of his study or research, comes across any judgment which in his view is per incuriam or if any information through the Registrar of the Court is passed on to the honourable Chief Justice of the Court or to any other Judge (of this Court), by any member of the Bar, or the member of the civil society (any organization/group of the society) that a judgment is per incuriam (note: without the informant having any right or locus standi of hearing or the audience, until the matter is set out for hearing in the Court and the Court deems it proper to hear him), the Court in exercise of its inherent suo motu power and the duty mentioned above (emphasis supplied) shall have the due authority and the empowerment to examine such a judgment, in order to ascertain and adjudge if the law laid down therein is incorrect or otherwise. And if the judgment is found to be per incuriam, it shall be dealt with accordingly. In such a situation (as earlier stated) it shall not be of much significance, as to who has brought the vice of the judgment to the notice of the Court or through which channel it has reached there. Rather, the pivotal aspect, the object, the concern and the anxiety of this Court should be to examine the judgment and if it is per incuriam to set the law right with considerable urgency.” On perusal of the paragraphs referred to hereinabove, we can safely reach a conclusion that this Court has absolute powers to re-visit, to review and or to set aside its earlier judgments/orders by invoking its Suo Motu Jurisdiction under Articles 184(3), 187 or 188 of the Constitution. The Powers of this Court to exercise its inherent jurisdiction under the above referred Articles of the Constitution are not dependant upon an application of a party. Civil Appeal No. 1772 of 2008, etc. 22 14. The learned counsel has contended that the petitioner has the fundamental rights, under Articles 9 and 25 of the Constitution to seek protection of his liberty as a citizen of this country. We are not persuaded by this contention of the learned Advocate Supreme Court of the petitioner. The protection of the term “liberty” used in this Article would not cover the petitioner, who was convicted by this Court, and had exhausted all the legal remedies available in law, against his conviction and sentence. The findings of this Court against the petitioner had attained finality, which could not be undone on the basis of the judgment in the case of Dilawar Hussain (supra) which came, later in time, and had distinct facts. Therefore, the contention of the learned Advocate Supreme Court that Article 9 of the Constitution protects the life and liberty of the petitioner is without force. As far as the discrimination under Article 25 of the Constitution is concerned, the petitioner has not been discriminated against at all. This Court has decided his case on the basis of the material produced at trial. The petitioner could not plead discrimination of lesser sentence by relying on the case of Dilawar Hussain (supra), as every case needs to be decided on its own merits and the decision of one case will not regulate the quantum of sentence in the other case, nor it could attract the term ‘discrimination’ as used in Article 25 of the Constitution. 15. For the aforesaid reasons, we hold that 2nd Criminal Review Petition of the petitioner is not competent and the judgment dated 28-2-2001, in Criminal Appeal No. 23/1997, and the order dated 6-3- 2008 in Criminal Review Petition No.12/2001, passed by this Court having attained finality, cannot be impugned once the petitioner has exhausted all his legal remedies. Mere delay on the part of executive to execute the sentence of the petitioner would not give him a right to approach this Court and have his decision reversed on the aforestated grounds.” Syed Shabbar Raza Rizvi and others v Federation of Pakistan, Ministry of Law and Justice Division through Secretary, Islamabad and others (2018 SCMR 514) “There is another aspect of the matter which is of considerable importance i.e. the maintainability of these petitions. In this context, it is held that the petitioners had the remedy of challenging the judgment, if they were aggrieved of the same, by filing review petitions, which they did attempted so to do but could not succeed. They were a party in Khurshid Anwar Bhinder's case (supra) and their respective submissions were rejected and the review applications were accordingly dismissed as being not maintainable; besides observing that the judgment impugned, being in the supreme national interest, there hardly appeared any justification for review. Further, the petitioners contested the contempt notices in Justices (R) Iftikhar Hussain Chaudhry's case (supra) and then Intra Court Appeals in Justice Hasnat Ahmed Khan's case (supra) but without any measure of success. All the points raised in the said cases/judgments have been re-agitated through the present petitions. In such a situation, the petitions under Article 184(3) are absolutely incompetent and not maintainable. Where a person has/had the opportunity of filing a review or appeal against a judgment, and either files a review/appeal and fails, or does not avail that opportunity, or fails to become a party in any pending review/appeal filed by another person against the same judgment, then he has no right to re-agitate the matter through a petition under Article 184(3) ibid. Article 184(3) ibid is a Civil Appeal No. 1772 of 2008, etc. 23 constitutional provision which is meant for the purposes of enforcement of fundamental rights, where there is a question of public importance involved. It cannot be exercised as a parallel review jurisdiction by the court, especially when the remedy of review has already been availed or declined. Yes, a judgment of this Court can be considered to be per incuriam but it is for the Judges to revisit any such judgment, if and when pointed out by any person during the course of hearing of any other case. Such a finding would be premised on the Court finding the same judgment to be against any provision of the Constitution or the law, or the principle(s) already settled by a larger Bench of the Court. It is not the right of a person, who would have no locus standi under Article 184(3) of the Constitution, to file such a petition, particularly in the situation where the review jurisdiction has been invoked and the same (review) has been dismissed; thus, such judgment (under review) can never be challenged by virtue of filing independent proceedings under Article 184(3) of the Constitution. This would be an abuse of the process of law and is absolutely impermissible. Resultantly, we do not find any merit in these petitions which are accordingly dismissed.” Akhter Umar Hayat Lalayka and others v Mushtaq Ahmed Sukhaira and others (2018 SCMR 1218) “Second review is barred by law and no party can now approach this Court for a second review, however, this Court has absolute power to re-visit its earlier judgments/orders by invoking its Suo Motu Jurisdiction under Articles 184(3), 187 or 188 of the Constitution. This Power is not dependant upon an application of any party and it was so held in the case of Khalid Iqbal v. Mirza Khan (PLD 2015 SC 50), in the following words:- “12. The question of maintainability of the 2nd Criminal Review Petition on the ground that this Court has to do complete justice by invoking Article 187(1) of the Constitution is also misconceived. The provisions of Article 187(1) cannot be attracted in the present case, as this Court has already recorded findings against the petitioner by the Judgment dated 28-2-2001, against which review was also dismissed and there was no 'lis' pending before this Court warranting exercise of its jurisdiction under Article 187(1) of the Constitution, besides Rule 9 of the Order XXVI of the Supreme Court Rules, bars 2nd Review Petition. There is a distinction between right of a party to approach the Court and jurisdiction of the Court to do complete justice on its own. Once this Court has finally determined the right of the petitioner in the judgment dated 28-2- 2001, holding him guilty, the petitioner through 2nd Review Petition, cannot re-agitate it. If such a Review Petition is allowed to be entertained, it will land in a situation where findings of this Court against a party will never attain finality. 13. This, however, does not mean that the jurisdiction of this Court is barred by any restriction placed by the Constitution; there is no Article in the Constitution which imposes any restriction or bar on this Court to revisit its earlier decision or even to depart from them, nor the doctrine of stare decisis will come in its way so long as revisiting of the judgment is warranted, in view of the significant Civil Appeal No. 1772 of 2008, etc. 24 impact on the fundamental rights of citizens or in the interest of public good. ... … On perusal of the paragraphs referred to hereinabove, we can safely reach a conclusion that this Court has absolute powers to re-visit, to review and or to set aside its earlier judgments/orders by invoking its Suo Motu Jurisdiction under Articles 184(3), 187 or 188 of the Constitution. The Powers of this Court to exercise its inherent jurisdiction under the above referred Articles of the Constitution are not dependant upon an application of a party.” The same view has been reiterated in a recent judgment dated 5.1.2018 passed in the case of Syed Shabbar Raza Rizvi v. Federation of Pakistan (2018 SCMR 514).” 6. In view of the legal position already declared by this Court in the above mentioned precedent cases the questions posed above are answered as follows: (i) Can a non-compoundable offence be treated as a compoundable offence for the purpose of recording an acquittal in respect of that offence if a coordinate compoundable offence committed in the same case has been compounded by the relevant parties? It has already been clarified in many a case that the non- compoundable offence of terrorism is an offence distinct and independent from any other coordinate offence also committed in the same case including the offences under sections 302, 365-A, 396 and 460, PPC, etc. and a reference in this respect may be made to the cases of Muhammad Amin v The State (2002 SCMR 1017), Muhammad Ali and others v The State and others (PLD 2004 Lahore 554), Muhammad Rawab v The State (2004 SCMR 1170), Muhammad Akhtar alias Hussain v The State (PLD 2007 SC 447) and Kareem Nawaz Khan v The State through PGP and another (2016 SCMR 291). It is hereby held that an offence which the law declares to be non-compoundable remains non-compoundable even if in a coordinate compoundable offence a compounding takes place between the relevant parties and, therefore, despite any compounding of the coordinate compoundable offence an acquittal cannot be recorded in the non-compoundable offence on that sole basis. Civil Appeal No. 1772 of 2008, etc. 25 (ii) Can the sentence passed in a non- compoundable offence be reduced on the ground that a coordinate compoundable offence committed in the same case has been compounded by the relevant parties? It is declared that in an appropriate case, keeping in view the peculiar circumstances of the case, compounding of a coordinate compoundable offence may be considered by a court towards reduction of the sentence, within the permissible limits, passed for commission of a non-compoundable offence. It is further declared that consideration of this factor vis-à-vis reduction of the sentence passed for commission of the non-compoundable offence lies within the discretion of the court and cannot be treated as automatic or as a matter of course. (iii) If the answer to question No. (ii) is in the affirmative then at what stage and by which court or forum reduction in the sentence passed in respect of a non-compoundable offence be ordered, if deemed warranted in the circumstances of the case? It is clarified that in case of compounding of a coordinate compoundable offence reduction of a sentence passed or to be passed for commission of a non-compoundable offence may be considered on that ground by the following courts at the following stages of the case: (i) by the trial court at the time of passing the sentence at the end of the trial; or (ii) if compounding of the coordinate compoundable offence takes place at the appellate or revisional stage before a High Court or before this Court at the stage of petition for leave to appeal or appeal or review petition then a prayer for reduction of the sentence passed for commission of the non- compoundable offence may be made on that ground before the Court seized of the pending matter; or Civil Appeal No. 1772 of 2008, etc. 26 (iii) if this Court has already passed a final order or judgment in a petition for leave to appeal or an appeal and no review petition has been filed so far then reduction of the sentence passed for the non-compoundable offence may be sought on the ground of compounding of the coordinate compoundable offence through filing of a review petition before this Court; or (iv) if the remedy of filing of a review petition before this Court has already been exhausted then, there being no scope for filing of a second or subsequent review petition before this Court and a party to a case or anyone else interested in the matter being in no position to seek revisiting of an earlier order or judgment of this Court, the only remedy left for seeking reduction of the sentence passed for commission of a non-compoundable offence on the ground of compounding of a coordinate compoundable offence is to file a Mercy Petition before the worthy President of Pakistan who may, in his discretion, consider this aspect in the light of the judgments passed by this Court on the subject from time to time; or (v) if the remedy of a Mercy Petition before the President has already been exhausted before compounding of the coordinate compoundable offence has taken place then after acceptance of the compromise by the competent court in respect of the coordinate compoundable offence the Superintendent of the relevant Jail shall, upon an initiative of the convicted prisoner, forward a fresh Mercy Petition to the President on behalf of that convicted prisoner seeking fresh consideration of the matter by him in respect of the sentence passed against the convicted prisoner for commission of the non-compoundable offence in the light of compounding of the coordinate compoundable offence committed by him. When seized of such a fresh Mercy Petition the President may, in his discretion, consider the Civil Appeal No. 1772 of 2008, etc. 27 matter of the convicted prisoner’s sentence passed for commission of the non-compoundable offence afresh in the light of the judgments passed by this Court on the subject from time to time. 7. The office is directed to fix the captioned appeals and petitions for hearing before appropriate Benches of this Court for their decision in terms of the legal position declared through the present judgment. Chief Justice Judge Judge Judge Judge Judge Judge Announced in open Court at Islamabad on 11.10.2019. Chief Justice Islamabad 11.10.2019 Approved for reporting. Arif

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• IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE GULZAR AHhilED, HCJ MR. JUSTICE IJAZ UL AHSAN � •. MR. JUSTICE SAYYED MAZA.HAR ALI AKBAR NAQVI Mk' ') :Civil AppeL__ 1 No.1.78 of 2020 Against judgment dated 07.11.2019 of Peshawar High Court, Peshawar, passed in Civil Revision No.127-B of 2016. Government of KPK through Secretary „..Appellant(s) Elementary & Secondary Education, Peshawar & Others VERSUS Latif Ullah Khan � ...Respondent(s) For the Appellant(s): �Mr. Atif Ali Khan, Addi.AG, KP For the Respondent(s): � Mr. Tariq Javed Qureshi, A.SC OA, ft...5 7or.j._,-,4 Date of Hearing: � 03.02.2021 JUDGMENT 'JAZ tJL AHSAN, J-. Through the instant Appeal by leave of the Court, the Appellants have challenged the judgment of the Peshawar High Court, Peshawar dated 07.11.2019 (hereinafter referred to as "the Impugned Judgment') whereby a Revision Petition (C.R1Va 127-B of 2016) filed by them was dismissed. 2. � Briefly stated the facts necessary for the disposal of this appeal are that the Appellants advertised various posts of Primary School Teachers (PST) in the Daily Aaj newspaper, dated 16.10.2008, inviting applications from eligible candidates. As per the said advertisement, sixty , Civil Appeal No.1 78 of 2020 percent of the posts would be :filled through initial recruitment based on merit at District level and the remaining forty percent would be filled through recruitment on merit at union council level. The Respondent, being a permanent resident of union council Isak Khel and holding a two-year diploma in education from Regular institute of Technical Education (R.I.T.E), applied against the respective post. However, after completing the requisite test and interview, the Respondent was placed at No.24 on the merit list and therefore other candidates who were higher on the merit list were appointed against the vacant posts. Aggrieved, the Respondent filed a civil suit for declaration and mandatory injunction against the Appellant in the Court of Senior Civil Judge, Lakki Marwat on 02.04.2012. The Respondent had two main grievances. First, that he is a qualified diploma holder in education from R.I.T.E whereas all the appointees had their diplomas from Ailama Iqbal Open University and as per prevailing policy the R.I.T.E diploma was given preference over the diplomas of other institutions. Therefore, he contended that on the basis of such policy he should have been placed at serial No.01 on the merit list. The second grievance of the Respondent was that no marks had been given to him for his five years of experience in the field of teaching whereas under recruitment policy the Appellants were bound to count five extra marks in the total mark of the Respondent. After recording evidence, the Trial Court decreed the suit in favor of the Respondent vide judgment and decree dated -':',1*A-• � 7:4E-VATXWWW-7,74ZZ-44.7.177 Civil Appeal No.178 of 2020 17.03.2015, directing the Appellant to appoint the Respondent against one of the available posts of PST in Union Council Isak Khel without further delay. Subsequently, the Appellant challenged the judgment and decree before the Additional District Judge, Lakki Marwat, which was dismissed vide judgment dated 25.05.2016. The Appellants then filed a Civil Revision Petition before the Peshawar High Court, Bannu Bench, which was also dismissed vide judgment dated 07.11.2019. Aggrieved of the same, the Appellant approached this Court and sought leave to appeal. 3. � Leave to appeal was granted by this Court vide order dated 02.03.2020 which is reproduced below for ease of reference: "Learned Additional Advocate General, KP has contended that all the three Court have misread the evidence, in that, DW-2 in his evidence, has made no admission that the 05 extra-marks were to be granted on account of field experience, as in his very cross examination he stated that no such policy of the Government was in. the field rather, some proposal was circulating about it. He further contends that on merits, the respondent has not qualified and Hasinuilah, who has obtained 67.832 marks from Isa Khel, Sher Zaman who has obtained 58.84 marks and Shafiullah, who has obtained 58.826, were appointed, while the marks obtained by the respondent Latifullah are 51.89, He further contends that even if the alleged 5 marks are counted for the petitioner, still he will not have similar marks as that of the three candidates notes above, who since have been appointed. He further contends that the suit was filed by the respondent after three years of appointment of process and such process of appointment had become past and closed transaction, which could not have been interfered with by the Court. ' 1?1,1L � 2_211:}'E4lgfi-,1111,1:21.0a210 Civil Appeal No.178 of 2020 � 4 2. � The contentions raised by the learned AAG require consideration. Leave to appeal is granted to consider, inter alia, the same. The appeal shall be heard on the available record but the parties are allowed to file additional documents within a period of one month. As the matter relates to service, office is directed to fix .the same expeditiously, preferably after three months." 4. The main argument advanced by the learned counsel for the Appellant is that all three Courts have misread the evidence and ignored the fact that all the posts were filled purely on merit in accordance with the relevant law and policy. With regards to the argument of the Respondent that five additional marks should be added to his total mark based on his five years of field experience, learned counsel contends that no such recruitment policy exists in practice and that only a mere a proposal regarding it has been circulated. Learned counsel points out that the Respondent's own witness, DW-2, in his cross-examination admitted this very fact. Thus, he argues that in the absence of any policy in practice, no relief could have been granted to the Respondent on the ground of five years of field experience. 5. Learned counsel for the Respondent, on the other hand, has argued that since the Respondent was a qualified diploma holder from R.I.T.E, which is an. eighteen- month diploma, whereas the appointees obtained their diplomas from Allama Iqbal Open University, which is a nine-month diploma, therefore, in accordance with relevan policy, the Respondent should be given preference over other Z.T,T:IlinETITYEZEINFEaIESENZHEE113.1:EIF!0:717,72:TE::*'1: ' � iFv.,;:!...r....44q.":..v),.:-1:111, kilfsP2U6,127 L42 � P.d?&:2:1-..i;Y:::;:. Civil Appeal No. 178 of 2020 � 5 candidates. Learned counsel further submits that no additional marks for experience were granted to the Respondent despite the fact that he possessed five years of experience in the field of teaching and as per recruitment policy five additional marks should have been added to his total mark: It has also been argued before us that other similarly placed candidates who possessed the R.I.T.E diploma were given preference and appointed against the posts of PST. Hence, a refusal to grant the same relief to the Respondent amounts to discrimination and violation of his fundamental rights protected under the Constitution of the Islamic Republic of Pakistan, 1973. 6. We have heard the learned counsel for the parties at considerable length and gone through the case record. The key question which falls for the determination of this Court is whether under the recruitment policy the Respondent should have been appointed against the post of PST based on his qualification and his five years' worth of field experience in education. 7. Perusal of the record reveals that the Respondent is a qualified diploma holder from R.I.T.E and as per notification Ex.DW1/1, the Associate Degree in Education (ADE) is given preference in recruitment against the post of PST, for the reason that ADE is a two-years program whereas the duration of other diplomas is nine months or one year. Therefore, it is clear from the outset that under recruitment policy, a R.I.T.E diploma holder is to Civil Appeal No.173 of 2020 � 6 be given preference over other candidates. However, it is pertinent to note that such preference shall only be given when the candidate has equal marks as the other competing candidate on merit. Therefore, a distinction must be drawn between a R.I.T.E diploma holder who has equal marks as other candidates on the merit list and is thereby given preference on the basis of his qualification and a RIT.E diploma holder who scores significantly lower marks than competing candidates. The latter shall not be given preference merely by virtue of the diploma. Accordingly, the Respondent cannot be given preference over the candidates appointed against the respective posts when his overall marks were significantly lower than those who were appointed on merit. Therefore, we do not find this argument to be sustainable. 8. � With regard to the second argument of the Respondent that he should be appointed against the post of PST based on the five additional marks for his field experience, we are not convinced of the same. It must be noted that the marks obtained by the Respondent were 51.39 and , even if the additional five marks for experience were added, his overall mark would be 56.89. On the other hand, the candidates who have been appointed against the respective posts have obtained 67.832, 58.84, and 58.826 marks respectively. Therefore, even if the Respondent was granted the additional five marks, he would still not have similar marks as those of the three candidates who have Civil Appeal No.178 of 2020 been appointed. It must also be noted that the Respondent's own witness (DW-2) admitted during cross examination that the said policy for granting additional marks for experience had yet not been implemented in practice and that only a mere proposal regarding it had been circulated. Therefore, in the absence of any concrete policy in place, the Respondent cannot get any relief on account of his five years of experience in the field of education. 9. � With regard to the final argument of the learned counsel for the Respondent that various other candidates were given preference and appointed against the posts of PST based on the R.I.T,E diploma, therefore a failure to grant the same treatment to the Respondent amounts to discrimination, we are not persuaded by the same. We note that this argument was not made by the Respondent at any stage of the case, either before the Civil Judge, the Additional District Judge or before the Peshawar High Court. Since the Respondent failed to do so and also failed to implead the alleged similarly placed candidates, it is not possible for us at this point to ascertain whether the Respondent was discriminated against. 10. �It is essential to note that under Section 115 of the Code of Civil Procedure (1908), the supervisory jurisdiction of the High Court in a civil revision petition is purely discretionary and rather limited. However, this Court has held on many occasions that such discretion must be exercised in a lawful and valid manner on the basis of well - _C c Civil Appeal No.1 78 of 2020 � 8 entrenched principles of the exercise of such discretion. Therefore, the High Court shall not arbitrarily refuse to exercise its discretionary powers, rather, it must satisfy itself as to whether jurisdiction has been exercised properly and whether the proceedings of the subordinate Court suffer from any illegality or irregularity. We find that in the present case, the Peshawar High Court failed to exercise its revision jurisdiction properly in law. 11. �In light of what has been discussed above, we find that none of the grounds on the basis of which the Appellant was ordered to appoint the Respondent against the post of PST are maintainable, Therefore, the Peshawar High Court has seriously erred in law by dismissing the Civil Revision Petition filed by the Appellant. Consequently, the impugned judgment dated 07.11.2019 passed by the Peshawar High Court is set aside and the listed appeal is allowed. ISLAMABAD, THE 3rd of February, 2021 Fizz' AC/* NA Approved For Rep

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{'id': 'C.A.178_2020.pdf', 'url': ''}

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN. MR. JUSTICE MUSHIR ALAM. CIVIL APPEAL NO. 1793 OF 2016 AND C. M. APPEAL NO. 206 OF 2016. (On appeal against the judgment dated 31.5.2016 of the Lahore High Court, Rawalpindi Bench passed in FAO No. 49 of 2015). Nadeem Farooq and others. …Appellant(s) Versus Newze Land Electronic Trading Co. Lee Sharja. …Respondent(s) For the appellant(s): Sh. Zamir Hussain, ASC. Mr. Ahmed Nawaz Ch., AOR. (Absent) For the respondent(s): Mr. Shaukat Rauf Siddique, ASC. Mr. Mehmood A. Sh., AOR. (Absent). Date of Hearing: 30.11.2016. O R D E R EJAZ AFZAL KHAN, J.- This appeal as of right has arisen out of the judgment dated 31.05.2016 of the Lahore High Court, Rawalpindi Bench whereby the learned Judge in its chambers allowed the revision petition filed by the respondent and set aside the order of the Executing Court accepting objection of the appellant. 2. This case was argued at length on many dates. The main contention of the learned ASC appearing on behalf of the appellants was that since the decree sought to be executed has been passed by the Federal Court of first instance which cannot be treated as a decree of superior Court in terms of Section 44-A CPC, it cannot be executed. 3. Learned ASC appearing on behalf of the respondent contended that since the Federal Court of first instance also hears appeals in the matters against judgments of local Courts, it could also be treated as Federal Court of appeal and as such a superior Court for all legal and practical purposes. 4. We also involved the learned DAG in the matter but the assistance he provided is summed up as under :- CIVIL APPEAL NO. 1793 OF 2016 AND C. M. APPEAL NO. 206 OF 2016 2 “Learned Deputy Attorney General assisted the Court. Apparently he appears to have agreed with the proposition that the court of appeal does not mean the court of appeal exercising appellate jurisdiction in the matters other than those decreed by such court. It, according to him, includes the court confirming, reversing or modifying the decree of the court of first instance. Learned ASC for the respondent insisted that the court of appeal does not necessarily mean the court of appeal exercising appellate jurisdiction against the decree passed by the court of first instance but since nothing incisive, aboveboard and unambiguous has been cited as could justify a departure from the ordinary meaning of the word “superior” used in Section 44-A CPC, the learned Deputy Attorney General wants a week’s more time to provide the assistance of that nature. Re-list on 07.11.2016.” 5. We have gone through the record carefully and considered the submissions of the learned ASCs for the parties. 6. The question emerging for the consideration of this Court is what is the nature of the decree, what is the status of the Court passing it and whether such decree could be executed in a Court in Pakistan. The main provision of CPC dealing with the nature of the decree, status of the Court passing it and its executability is Section 44-A which reads as under :- “44-A. Execution of decree passed by Courts in the United Kingdom and other reciprocating territory. (1) Where a certified copy of a decree of any of the superior Courts of the United Kingdom or any reciprocating territory has been filed in a District Court, the decree may be executed in [Pakistan] as if it had been passed by the District Court. (2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment. (3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the expectations specified in clauses (a) to (f) of Section 13. Explanation 1. “Superior Courts”. With reference to the United Kingdom, means the High Court in England, the Court of Session in Scotland, the High Court in Northern Ireland, the Court of Chancery of the County Palatine of Lancaster and the Court of Chancery of the County Palatine of Durham. CIVIL APPEAL NO. 1793 OF 2016 AND C. M. APPEAL NO. 206 OF 2016 3 Explanation 2. “Reciprocating territory” means [the United Kingdom and such other country or territory as] the [Federal Government] may, from time to time, by notification in the [official Gazette], declare to be reciprocating territory for the purposes of this section; and “superior Courts”, with reference to any such territory, means such Courts as may be specified in the said notification. Explanation 3. “Decree”, with reference to a superior Court, means any decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, and a) with reference to superior Courts in the United Kingdom, includes judgments, given and decree made in any Court in appeals against such decrees or judgments, but b) in no case includes an arbitration award, even if such award is enforceable as a decree or judgment.]” 7. What is the status of United Arab Emirates and what is the superior Court in its hierarchy for the purposes of Section 44-A CPC have been fully illustrated in the notification SRO No. 208(I)2007 which reads as under:- “SRO. 208(I)/2007.--- In exercise of the powers conferred by Section 44A of the Code of Civil Procedure, 1908 (Act V of 1908), the Federal Government is pleased to declare the United Arab Emirates to be a reciprocating territory and the Court of Appeal of the United Arab Emirates to be Superior Courts for the purposes of the said Section. WHEREAS under section 44A of the Code of Civil Procedure, 1908 (Act V of 1908), the Federal Government is empowered to declare, by notification in the Official Gazette, any country to be reciprocating territory for the purposes of said section and also to declare Superior Courts with reference to any such territory.” It is thus clear that United Arab Emirates has been declared as a reciprocating State and that the Court of Appeal in the United Arab Emirates is a superior Court for the purposes of Section 44-A CPC. What is the hierarchy and ranking of the Courts established in United Arab Emirates has been listed in Article 9 of the Federal Law No. 03 issued on 26.05.1983 (Concerning The Federal Judicial Corps) which reads as under:- “Article 9. As Amended by Article 1 of the Federal Law No. 2 dated 24/3/1991: The federal courts in the United Arab Emirates State shall consist of: CIVIL APPEAL NO. 1793 OF 2016 AND C. M. APPEAL NO. 206 OF 2016 4 1. The Federal Supreme Court. 2. The Federal Courts of Appeal. 3. The Federal Courts of First Instance. Their ranking among themselves shall be in the order in which they are listed hereinabove.” 8. A combined reading of Section 44-A CPC, SRO notification No. 208(I)/2007 and Article 9 of the Federal Law No. 03 issued on 26.05.1983 (Concerning The Federal Judicial Corps) would reveal that United Arab Emirates is a reciprocating State and that the Federal Court of Appeal established in the hierarchy is a superior Court for the purposes of Section 44-A CPC. Now what is left to be determined by this Court is as to what is the status of the Court passing the decree sought to be executed? A look at the decree would reveal that it has been passed by the Court of first instance which can neither be construed as Court of Appeal nor a superior Court in terms of Section 44-A CPC and the notification issued thereunder. When so it cannot executed without having recourse to the process of Section 13 of the CPC. The view taken by the High Court thus does not appear to be correct. 9. For the reasons discussed above, we allow this appeal, set aside the impugned judgment and restore that of the Executing Court. The respondent, however, would be at liberty to institute a suit in terms of Section 13 CPC which shall be disposed of as expeditiously as possible but not later than six months. The C. M. Appeal also stands disposed of. JUDGE JUDGE ISLAMABAD. 30.11.2016. M. Azhar Malik

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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN. MR. JUSTICE UMAR ATA BANDIAL. C. A. No. 1797 of 2005. (On appeal from the judgment dated 26.09.2005 passed by the Lahore High Court, Lahore in C.R. No. 641 of 1991). Farid Bakhsh. …Appellant. Versus Jind Wadda and others. …Respondents For the appellant: Ch. Mushtaq Ahmed Khan, Sr. ASC Mr. M.S. Khattak, AOR For the respondents: Mian Asif Mumtaz, ASC (1-a,2,3) Date of hearing: 30.03.2015. J U D G M E N T EJAZ AFZAL KHAN, J.- This appeal has arisen out of the judgment dated 26.09.2005 of the Lahore High Court, Multan Bench whereby the learned Judge in its chambers allowed the revision petition filed by the appellants, set aside the judgment and decree dated 03.09.1991 of the learned Additional District Judge, Rajan Pur and restored the judgment and decree dated 12.02.1990 of the learned Civil Judge. 2. Facts forming the background of this case have been narrated in para-1 of the impugned judgment which read as under :- “On 22.4.1988 the respondent filed a suit against the petitioner. In the plaint it was stated that Muhammad alias Bhoori agreed to sell 99 kanals of land to the respondent for a consideration of Rs.90000/-. He received the entire amount of consideration and executed an agreement dated 28.11.1986. The executant died before the said date. Later records were checked and it was found that the deceased owned only 48 kanals 6 marlas and also the price comes to C. A. No. 1797 of 2005. 2 Rs.44500/-. The petitioners are the heirs of the deceased who has died issueless. He had earlier filed a suit for declaration which was withdrawn with permission to file afresh on 24.9.1988. The land stands mutated in favour of the petitioners. With these averments he sought a decree for specific performance of the said agreement. The petitioners in their written statement denied the said facts.” 3. The learned ASC appearing on behalf of the appellant contended that where the appellant proved the document by producing positive evidence, which also enjoyed the virtue of being preponderant, it was for the respondents to prove that the document was forged and fabricated. The learned ASC to support his contention placed reliance on the case of Dil Murad and others. Vs. Akbar Shah (1986 SCMR 306), Nazir Ahmed v. Muhammad Rafiq (1993 CLC 257) and Jagannath Khan and others v. Bajrang Das Agarwala and others (AIR 1921 Calcutta 208). Failure to examine the other attesting witnesses, the learned ASC submitted, cannot furnish a justification for non-suiting the appellant when the scribe of the document also supported the testimony of one of the attesting witnesses. Such failure, the learned ASC maintained, being procedural in nature cannot be construed as substantive so as to make it a basis for non-suiting the appellant. The learned ASC to support his contention placed reliance on the cases of Imtiaz Ahmed. Vs. Ghulam Ali and others (PLD 1963 SC 382), Jameel Ahmed. Vs. Late Saifuddin through Legal Representatives (1997 SCMR 260). Though the appellant, the learned ASC went on to argue, admitted that the executant suffered from a disease which resulted in his death but such admission appears to have been made without understanding the implications of the death-bed-transaction, therefore, no finding could based thereon. The learned ASC next C. A. No. 1797 of 2005. 3 contended that where two Courts below were at variance, the High Court in exercise of its revisional jurisdiction could not have interfered with the finding of the First Court of Appeal which was also the final court of fact. The learned ASC by placing reliance on the cases of S.A.K. Rehmani. Vs. The State (2005 SCMR 364), Muhammad Akram and another. Vs. Mst. Farida Bibi and others (2007 SCMR 1719) and Qadir Baksh (Deceased) through L.Rs. Vs. Allah Dewaya and another (2011 SCMR 1162), contended that no fault could be found with a document at a latter stage when it was admitted in evidence without any objection. The learned ASC lastly argued that where revision petition of the respondents was dismissed for non- prosecution, its restoration could not be made without hearing the appellant that too when application moved in this behalf besides being time barred did not disclose sufficient cause. 4. The learned ASC appearing on behalf of the respondents contended that where appellant being beneficiary of the document failed to prove it in accordance with the requirements of Article 79 of Qanoon-e-Shahadat Order [hereinafter referred to as “the Order”], the High Court was well within its turf to doubt its genuineness and discard it as such. The learned ASC next contended that where according to the appellant the executant received the amount and handed over possession of the property, what restrained him to get the deed registered. The whole story of the execution of the agreement to sell, the learned ASC added, appears to be a yarn spun to grab the property left by the deceased. While responding to the argument as to the restoration of the revision petition of the respondents dismissed for non-prosecution, the learned ASC contended that a revision petition admitted for C. A. No. 1797 of 2005. 4 regular hearing could be dismissed for non prosecution and that in case it was dismissed it could well be restored within a period of three years as was done in this case. The learned ASC by concluding his arguments contended that where the appellant himself admitted that the executant so called was suffering from a disease resulting in his death, he cannot turn around now to challenge the effect of such admission. 5. We have gone through the entire record carefully and considered the submissions of the learned ASCs for the parties. 6. The record reveals that the executant so called being a diabetic was living with the appellant. According to the appellant the executant so-called agreed to sell his landed property and that on receipt of sale consideration he executed the document which is Ex.P-1 on the record. But what happened to the executant so called during his stay with the appellant which called for the sale of his property? Alright, every human being with a free will could act in a manner he liked and even unpredictably but why didn’t appellant insist on registration of the sale when he paid the entire sum and there was no impediment in the way, is yet another question begging aloud for an answer. But when no answer much less convincing comes to the fore, it can well be gathered that things have not happened the way they have been portrayed in the plaint and the evidence examined by the appellant. 7. The deed witnessing the agreement appears to have been signed by two attesting witnesses but appellant examined only one. He to cover up the lapse, in the first instance, sought to construe the requirements of Article 79 as being procedural rather than substantive, and then sought to equate the testimony of the Scribe C. A. No. 1797 of 2005. 5 with that of an attesting witness. But we cannot appreciate any of these arguments unless we know the nature of the document and requirements of law for proving it. 8. There is no denying the fact that a deed witnessing an agreement to sell being a document involving financial obligation has to be proved in accordance with the requirements of Article 79 of the Qanoon-e-Shahadat Order. What are its requirements for proving a document of this type can well be known by reading it which runs as under:- “If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses [at] least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provision of the Registration Act, 1908, (XVI of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied.” This Article in clear and unambiguous words provides that a document required to be attested shall not be used as evidence unless two attesting witnesses at least have been called for the purpose of proving its execution. The words “shall not be used as evidence” unmistakably show that such document shall be proved in such and no other manner. The words “two attesting witnesses at least” further show that calling two attesting witnesses for the purpose of proving its execution is a bare minimum. Nothing short of two attesting witnesses if alive and capable of giving evidence can even be imagined for proving its execution. Construing the requirement of the Article as being procedural rather than substantive and equating the testimony of a Scribe with that of an C. A. No. 1797 of 2005. 6 attesting witness would not only defeat the letter and spirit of the Article but reduce the whole exercise of re-enacting it to a farce. We, thus, have no doubt in our mind that this Article being mandatory has to be construed and complied with as such. The judgments rendered in the cases of Imtiaz Ahmed v. Ghulam Ali and others and Jameel Ahmed v. Late Safiuddin through Legal Representatives (supra) have therefore no relevance to the case in hand. Reference to the judgment rendered in the case of Nazir Ahmed v. Muhammad Rafiq (1993 CLC 257) (supra) cannot help the appellant when it being against the terms and meanings of the Article is per incuriam. The case of Jagannath Khan and others v. Bajrang Das Agarwala and others (supra) too will not help the appellant when production of two attesting witnesses was not a requirement of the law then in force. The argument addressed on the strength of the judgment rendered in the case of Dil Murad and others v. Akbar Shah (supra) has not moved us a bit when the appellant failing to call the other attesting witness failed to prove the deed in accordance with the requirements of law. Such failure, in the absence of any plausible explanation, would also give rise to an adverse presumption against the appellant under Article 129(g) of the Order. In the case of Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs (PLD 2011 SC 241), this Court after defining the meanings of the word “attesting” in the light of Black’s Law Dictionary and other classical books and case law held that a document shall not be considered, taken as proved or used in evidence, if not proved in accordance with the requirements of Article 79 of the Order. C. A. No. 1797 of 2005. 7 9. Another reason for not equating the testimony of a Scribe with that of an attesting witness is that both of them sign the document in a different capacity and with a different state of mind. They, as such, do not meet the requirements of Article 79 of the Qanoon-e-Shahadat Order. Scribe, however, could be examined by the party for corroboration of the evidence of the attesting witnesses but not as a substitute therefor. This aspect was also highlighted in the case of Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs (supra) in the paragraph which reads as under:- “To the same effect are the judgments reported as Qasim Ali v. Khadim Hussain through legal representatives and others (PLD 2005 Lahore 654) and Shamu Patter v. Abdul Kadir Rowthan and others (1912 (16) IC 250). Therefore, in my considered view a scribe of a document can only be a competent witness in terms of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 if he has fixed his signature as an attesting witness of the document and not otherwise; his signing the document in the capacity of a writer does not fulfil and meet the mandatory requirement of attestation by him separately, however, he may be examined by the concerned party for the corroboration of the evidence of the marginal witnesses, or in the eventuality those are conceived by Article 79 itself not as a substitute.”\ 10. Transaction in this case, could not prima facie be given a colour of death-bed-transaction, if viewed in the light of the dicta rendered in the cases of Shamshad Ali Shah and others. Vs. Syed Hassan Shah and others (PLD 1964 SC 143), Mst. Chanan Bibi and 4 others. Vs. Muhammad Shafi and 3 others (PLD 1977 SC 28), Noor Muhammad Khan and 3 others. Vs. Habibullah Khan and 27 others (PLD 1994 SC 650), Rehmat Ali deceased through L.Rs. Vs. Mst. Karam Bibi and others (2006 SCMR 940), as nothing has been brought on the record by the respondents to show that the executant so called at C. A. No. 1797 of 2005. 8 the time of executing the agreement to sell suffered from a disease which became the immediate cause of his death; that the disease he suffered from was of a nature which could induce imminent apprehension of death and that the disease he suffered from incapacitated him from pursuing his ordinary activities. But where the appellant himself, despite having been given to understand what does the expression death-bed-transaction stand for, admitted that the executant so called suffered, at the relevant time, from a disease having all the attributes listed above, he cannot make a somersault at this stage. 11. The argument that no fault can be found with a document at the later stage when it was admitted in evidence without any objection is ornamental rather than legal as the counsel cross-examining the witness producing and exhibiting the document, can not foresee or anticipate that the other attesting witness is not going to be called. Therefore, the judgments rendered in the cases of S.A.K. Rehmani. Vs. The State (2005 SCMR 364), Muhammad Akram and another. Vs. Mst. Farida Bibi and others and Qadir Baksh (Deceased) through L.Rs. Vs. Allah Dewaya and another (supra) have no relevance to the case in hand. 12. The argument about restoration of revision petition in the absence of the appellant cannot be overplayed when a revision petition admitted for regular hearing could not be dismissed for non prosecution and in case it was, it could be restored when an application in this behalf was moved well within time. The argument that where two Courts below were at variance, the High Court in exercise of its revisional jurisdiction could not have interfered with the finding of the First Court of Appeal, which is also the Final Court of C. A. No. 1797 of 2005. 9 Fact, is also without substance when the latter handed down the finding without considering material parts of evidence on the record and the relevant law in this behalf. We, therefore, hold that the impugned judgment being based on correct appreciation of evidence and the relevant law, is unexceptionable on all accounts. 13. For the reasons discussed above, this appeal is dismissed, with no order as to cost.

{'id': 'C.A.1797_2005.pdf', 'url': ''}

{'id': 'C.A.1797_2005.pdf', 'url': ''}

Ch. Afrasiab Khan, ASC Mr. Muhammad Munir Piracha, ASC 9.2.2022 For the petitioner: For the Date of hearing: r-t / (App el1at Jur1sdictOfl) F R.' JUSTICEMAZHAR ALAJW KHAN MIANI(JI EL JUSTICE SYED MAflooR ALL SffAJ4 QLQj5 dgment dated the Peshawar id Bench in . Appellant I others ram (On appeal from the 23122013 passed High Court, Abbott C. No. 138/06) Muhammad Iqbaj Matj ur Rebman .Respondents ORDER 2frJ7cft5e1J The appellant, being defendant in . questioned the impugned judgment dated 23rd the Peshawar High Court Abbottabad Bench y predecessor of the respondents for issuance of n and PO55Cssion was concurrently decreed by Eience the present appeal with the leave of this rch, 2015. counsel for the parties were heard and record of H record would reveal that predecessor of the a suit for permanent injunction and Possession dispute against the present appellant who of the suit proper, by constructing a the main case, I December, 2013 whereby suit filed Permanent iniii, the Courts below, Court dated 13 th M 2. Learne. the case was perus( Perusal of t respondents had Ill of the Property i admittedly was in C.A. No. 180/15 2. house over the same. It is an established fact that the suit house is situated in Town Committee Nawan Shehar, Abbottabad and the house over the land/plot was constructed somewhere in 1981 by the• P present appellant for which he properly got an approval of a site plan and other necessary documents for the purpose. The case of the I respondents was that the land beneath the house constructed by the appellant is comprising Khasra No.2222/1 ('Khasra in question'), i area measuring 02 kanal, situated in "Shamlat 13th Mauza Nawan Shehar Janubi Tehsil and District Abbottabad' which as per revenue record, is owned by him, and this very fact was categorically denied by the appellant by submitting his written statement and alleged that the same was purchased by him through a registered sale deed bearing No.90 dated 29th January, 1981 from one Muhammad Yousaf Khan son of Hidayat Khan and record of the same was also confirmed by the Clerk Town Committee Nawan Shehar. Besides the above, he also alleged that the property he purchased is situated in town committee, Nawan Sheher. It is worth to be mentioned that the suit filed by the predecessor of the respondents was not for declaration of his title rather the same was for permanent injunction as stated above. The facts and circumstances of the case reflect that the respondents, under the law, were supposed to establish their title first by filing a suit for declaration along with possession of the property as a consequential relief as the appellant was admittedly in Possession of the plot by further establishing the fact that the plot in F Possession of the appellant is situated in khasra in question. Mere a suit for permanent injunction, in the given circumstances is not maintainable and cannot encompass the claim of respondents. L.A. No. 180/15 3. During the course of trial, the learned Judge deemed it appropriate to appoint a Local Commission vide its order dated 24th June, 1993 which is reproduced herein below:- It is therefore necessary to appoint a local commission who should visit the spot in presence of Patwarj Halqa and both the parties. After yointatjon QL the suit Khasra number by Patwarj Halcia, he should prepare report about any construction existing thereon, the nature of material used in the construction, the period of construction, the persons in its possession and assess its market value." The Local Commissioner, in the light of the directions of the trial1 Court, visited the spot along with revenue officials and Altaf Hussain, Record Clerk, Town Committee Nawan Shehar. As per report of thej Local Commissioner, the suit house is situated in Khasra in questioni but record of the case reflects that the said conclusion by the Local' Commissioner was made on the basis of statement/ version of the! Patwarj Haiqa accompanying him at the time of spot inspection.!" Such type of oral version, in absence of proper proof of the fact, can in no way be considered as a poof required under the West Pakistan I' Land Revenue Act, 1967. This is the moot question to be resolved, if it is established that the suit house admittedly owned, possessed and constructed by the appellant is situated in Khasra in question then that khasra as per revenue record produced by the Patwrj is part and parcel of Shamlat Deh which is jointly owned by the persons;: 1 whose names appear in the proprietary body of the village (proprietary body of the village is a body of persons who are already I owners of the agricultural land in the village). The respondents could I lay hand on this khasra number as owner if it is established on the! record that their names appear in the proprietary body and they I C.A. No.JMU/lb - are/were in physical possession of this khasra number prior to the purchase of appellant. They would also be obliged to prove their. dispossession either by the vendor of the appellant or the appellant himself.. Besides the above, it should also have been established through cogent and reliable evidence that the property in dispute is part and parcel of Shamlat Deh. The entire exercise done by the Local: Commissioner as well as the evidence produced by the respondents, during trial do not reflect that the suit house is situated in khasra in question being part of Shamlat land. There is no proper demarcation of the property comprising Sharrilat Deh and specifically khasra 1 No.2222/1. The revenue record produced by the Patwari Haiqa and 1 Sadar Office Qanungo during the trial, will in no way help out the'7 respondents to establish their case unless the above facts are established through demarcation on the spot. In absence of such. evidence, the documents so produced would have no evidentiary! value. The original mutation of the vendor of the Respondents has not been produced by PW- 1. Mere reference of the mutation in the: record of rights, as produced as Ex-PW- 1/3 is not sufficient to;• establish title of Respondents. The record produced by the Appellant from the proper lawful custody with his possession at the spot is sufficient to hold him owner of the house in question. This exercise could have been done by the revenue officer to define the boundaries of testate or khasra number under Section 117 of the West Pakistan Land Revenue Act, 1967 or demarcation of the property in question: under Rule 67-A of West Pakistan Land Revenue Rules, 1968. Proper location of a khasra number is not possible without such exercise. The record of the case would reflect that no such exercise was made in this case. Besides the above, the nature and status of the property. has been changed to commercial and residential since long. In such a A No.180/15 5 2 situation, a special kind of expertise would be required to locate and I demarcate a specific khasra. number. 4. We have gone through the judgments rendered by the:: Courts below specially the judgment of the Civil Judge dated 29th June, 2002 which is totally based on surmises and conjectures and not on proper appraisal of evidence and the relevant law and the record. The appellate Court and the High Court have simply. concurred with the findings of the trial Court and have failed to apply their judicial mind in the peculiar facts and circumstance of the case.: We, in view of the above, are left with no option but to allow the instant appeal by setting aside the judgments and decrees passed by: the Courts below and suit of the Respondents stands dismissed with no order as to costs. However, they may seek their lawful remedy, if any, in view of the above discussion, if so advised. Bench- Islamabad, 91h February, 2022 APPROVED FOR REPORTING / Y asir Khan/-

{'id': 'C.A.180_2015.pdf', 'url': ''}

{'id': 'C.A.180_2015.pdf', 'url': ''}